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Aguilar v. Berryhill

United States District Court, D. New Mexico

August 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.” ECF No. 22. The motion is fully briefed. See ECF No. 24 (Commissioner's Response) and 25 (Plaintiff's Reply). The Court held a telephonic hearing on July 20, 2018, at which the parties provided additional argument. See ECF No. 30 (transcript). Having meticulously reviewed the entire record, the briefing, and the information provided at oral argument, the Court concludes that the motion should be granted in part and denied in part and that the Administrative Law Judge's (“ALJ's”) decision should be vacated and remanded as it relates to the step three listings issue.[1]

         I. BACKGROUND

         Plaintiff was born June 26, 1969. Administrative R. (“AR”) 18. She earned her high school diploma and completed a “few credit hours” of college. AR 41. Plaintiff previously worked as a school board assistant, cashier, van driver, and adult in-home care provider. AR 41-43. Plaintiff filed an application for disability insurance benefits (“DIB”) on May 6, 2013, and an application for Supplemental Security Income (“SSI”) on June 12, 2013. AR 11. In both applications, Plaintiff alleged a disability onset date of June 3, 2012. AR 11. The Social Security Administration (“SSA”) denied both claims initially and again upon reconsideration. AR 11. Plaintiff requested a hearing, which was held by ALJ Benita A. Lobo on March 19, 2015. AR 11. Plaintiff testified at the hearing, as did vocational expert (“VE”) Kasey Suggs. AR 11, 152. Plaintiff was represented by counsel. AR 11.

         On June 4, 2015, ALJ Lobo issued her decision that Plaintiff was not disabled from June 3, 2012, through the date of decision. AR 19. Plaintiff asked the SSA's Appeals Council (“AC”) to review the ALJ's decision, but the AC declined. AR 1. Plaintiff timely filed her appeal in this Court. ECF No. 1.


         Plaintiff alleges that the ALJ's conclusion that Plaintiff's spine disorder did not meet Listing 1.04 was supported by insufficient analysis and was contrary to the medical evidence of record. See Pl.'s Mot. 7-11, ECF No. 22. Plaintiff also asserts that the ALJ erred by omitting from the Residual Functional Capacity (“RFC”) finding certain limitations based on Plaintiff's depression and ability to climb stairs. Id. at 12-14. Plaintiff next argues that the ALJ's unfavorable credibility determination was contrary to substantial evidence and applicable law. Id. at 14-21. Finally, Plaintiff contends that the ALJ erred by failing to clarify the VE's testimony concerning (a) the number of full-time jobs and part-time jobs in the national economy that Plaintiff can perform, and (2) the occupation of office clerk that the VE testified Plaintiff can perform. Id. at 21-25.


         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] 20 C.F.R. § 422.210(a) (2017). 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 her past relevant work to determine if the claimant is still capable of performing her 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 her 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 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).


         At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2017, and had not engaged in substantial gainful activity since the alleged disability onset date of June 3, 2012. AR 13. At step two, the ALJ determined that Plaintiff had the following severe impairments: sciatica, obesity, left knee chondromalacia, and diabetes mellitus. AR 13. The ALJ considered whether Plaintiff's depression was severe, but concluded it was not because “[m]ental status examinations have not identified any significant psychological abnormalities[, ]” and although Plaintiff initially reported depression in August 2013, she did not seek treatment until August 2014. AR 14. The ALJ continued, “Based on the evidence of record, the undersigned concludes that this condition has no more than a minimal effect on the claimant's ability to perform basic work activities and hence is not a severe impairment.” AR 14. At step three, the ALJ 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 14. The ALJ specifically considered Listings 1.02 and 1.04, as well as “any other listed impairment.” AR 14.

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

After careful consideration of the entire record, the undersigned finds that [Plaintiff] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except no climbing of ladders, ropes, scaffolds; no work on uneven/vibrating surfaces, no work at heights; and occasional stooping, kneeling, crouching, crawling. [Plaintiff] would need to alternate sitting/standing every 10-15 minutes, for a few minutes at a time without leaving her workstation, [and] would require a cane to ambulate and elevate her feet under the desk.

AR 14.

         As part of determining the RFC, the ALJ reviewed the medical evidence in the record. AR 14-18. The ALJ considered a notation from Dr. Annmarie Overholser[3], M.D., and the opinions of non-examining state agency medical consultants Dr. Mark A. Werner[4], M.D., and Dr. Kenneth Glass, M.D. AR 73-80, 83-92, 654. In addition, the ALJ reviewed medical records from Gallup Indian Medical Center [AR 287-90, 381-405, 494-516], Tohatchi Health Center [AR 291-353, 355-56, 420-93, 636-47], Indian Health System Tohatchi [AR 357-380], Enchantment Physical Therapy [AR 617-35, 648-53], Navajo Nation Division of Social Services [AR 654-55], and New Mexico Orthopedics [AR 656-761]. The ALJ thoroughly reviewed primary care records from June 2012 to August 2013 [AR 15] and physical therapy records from September 2012 to February 2015 [AR 15]. The ALJ also discussed Plaintiff's lumbar spine X-ray taken sometime between June 2012 and September 2012, [5] Plaintiff's lumbar spine Computed Tomography (“CT”) scan in October 2013, and Plaintiff's lumbar Magnetic Resonance Imaging (“MRI”) scan in July 2014. AR 15. Lastly, the ALJ reviewed the hearing testimony of Plaintiff [AR 15-16] and the VE [AR 19].[6]

         Dr. Annmarie Overholser, M.D.

         Dr. Overholser was Plaintiff's primary care physician. See AR 570. The ALJ assigned “some weight” to Dr. Overholser's June 3, 2014, notation, but opined that, with respect to Plaintiff's ability to sit, stand, or walk for prolonged periods of time, “the doctor's opinion on time, no more than 5-10 minutes, contrasts sharply with the other evidence of record, and [Plaintiff's] testimony at the hearing, which renders this opinion less persuasive.” AR 16. Plaintiff saw Dr. Overholser for appointments on December 17, 2013 [AR 482], January 24, 2014 [AR 386, 448], June 3, 2014 [AR 457], and July 2, 2014 [AR 510]. The Navajo Nation Division of Social Services requested updated information regarding Plaintiff's health status from Dr. Overholser since Plaintiff received cash assistance from the Division, and a requirement of that assistance was that Plaintiff work in an approved work activity. AR 654. On June 3, 2014, Dr. Overholser wrote that Plaintiff had “limited mobility due to back [and] knee pain. [She] cannot sit for prolonged periods of time (no more than 5-10 minutes).” AR 654.

         Dr. Mark A. Werner, M.D.

         Dr. Werner is a non-examining consultative physician who reviewed Plaintiff's records on August 7, 2013. AR 78. The ALJ assigned “some weight” to Dr. Werner's opinion, but noted that “additional medical evidence received [ ] after the date of the state agency determination . . . justifies a conclusion that [Plaintiff's] impairments are more limiting than was concluded by the state agency consultants. Updated medical records show [Plaintiff] ambulating with a walker and then cane . . . which would reduce her to sedentary work.” AR 17. Dr. Werner reviewed records from Tohatchi Health Center, Gallup Indian Medical Center, a third party functional report from July 2, 2013, a headache questionnaire, Plaintiff's functional report from July 1, 2013, and Plaintiff's work history. AR 74-75. Dr. Werner concluded that Plaintiff had severe impairments of “other and unspecified arthropathies” and major joint dysfunction. AR. 76. Dr. Werner also concluded that Plaintiff had non-severe diabetes mellitus. AR 76. Dr. Werner considered Listing 1.02, but did not consider Listing 1.04. AR 76. Dr. Werner found Plaintiff to be credible. AR 76. Dr. Werner concluded that Plaintiff had “more than a non-severe impairment and her impairments do not meet or equal the listings[, ]” and that Plaintiff had the capacity to perform light work. AR 75, 79.

         Dr. Werner opined that Plaintiff can occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, stand or walk with breaks for a total of approximately six hours per day, and could sit with normal breaks for a total of six hours per day. AR 77. Dr. Werner also opined that Plaintiff had an unlimited ability to push or pull, that Plaintiff could only occasionally climb ramps or stairs, climb ladders, ropes, and scaffolds, stoop, kneel, crouch, or crawl, and that she could frequently balance. AR 77. Dr. Werner concluded that Plaintiff was not otherwise functionally limited. AR 77.

         Dr. Kenneth Glass, M.D.

         Dr. Glass is a non-examining consultative physician who reviewed Plaintiff's records on November 25, 2013, upon reconsideration. AR 92. The ALJ assigned “some weight” to Dr. Glass's opinion, but noted, as with Dr. Werner's opinion, that “additional medical evidence” of Plaintiff's limited ability to ambulate reduced her to sedentary work. AR 17.

         Besides what Dr. Werner reviewed, Dr. Glass reviewed additional records from Indian Health System Tohatchi, another third party function report, additional records from Tohatchi Clinic, and evidence from Plaintiff. AR 84-85. With respect to whether there had been any changes to Plaintiff's condition since she last submitted a disability report, Plaintiff wrote that on August 26, 2013, the dosage of medication for her nerves increased, she was diagnosed with sciatica, and she was referred to physical therapy. AR 84. Plaintiff also wrote, “I still can't [sit] for long periods of time without being in pain/not stand for long periods of time which would limit me to any work or daily activities.” AR 84.

         Dr. Glass noted that Plaintiff was examined on July 24, 2013, and presented with spine tenderness, slight discomfort with a straight leg raise, and pain with pushing her leg back down. AR 90. During that examination, Plaintiff had tender lateral, knee, and thigh muscles, and her left leg was significantly smaller in diameter than her right leg. AR 90. The examiner could not palpate Plaintiff's left foot well due to a tremor, and Plaintiff had decreased sensation to touch with numbness on the sole of her lateral foot and toes. AR 90. Plaintiff could not stand on her tiptoes or heels without assistance. AR 90. Plaintiff was also unable to walk on her tiptoes or heels. AR 90. Dr. Glass noted Plaintiff's follow up appointment on August 26, 2013, during which Plaintiff reported that her back pain was better since she began taking Neurontin and that she still had “some sciatica and weakness” but her pain and function were better. AR 90. Plaintiff walked daily with a walker and was also doing exercise she learned from a “boot camp guy.” AR 90.

         Dr. Glass reviewed Plaintiff's activities of daily living as of September 2013. AR 90-91. Plaintiff could care for herself and her children, but needed assistance with putting on her socks and shoes. AR 90-91. Plaintiff reported that she could cook simple meals and perform light tasks around the house, and that she visited family and friends. AR 91. Plaintiff also described being able to walk approximately 100 to 200 feet using a walker or cane and a knee brace. AR 91. Dr. Glass concluded that Plaintiff “should be able to perform” within the RFC he described. AR 91.

         Dr. Glass generally affirmed Dr. Werner's findings and conclusions, except that Plaintiff had limited ability to push and pull in both lower extremities, and that Plaintiff “is limited to occasional ambulation on unlevel ground.” AR 89. Like Dr. Werner, Dr. Glass considered Listing 1.02, but did not consider Listing 1.04. AR 88. Dr. Glass also concluded that Plaintiff had environmental limitations ...

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