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Duncan v. Berryhill

United States District Court, D. New Mexico

August 22, 2018

TAMA LYNN DUNCAN, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ON MOTION TO REVERSE AND REMAND FOR A REHEARING

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Tama Lynn Duncan's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 18), which was fully briefed on April 17, 2018. See Docs. 22, 23, 24. Pursuant to 28 U.S.C. § 636, the Honorable James O. Browning referred this matter to me for a recommended disposition. Doc. 7. Having meticulously reviewed the entire record and being fully advised in the premises, I recommend that the Court GRANT Ms. Duncan's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[1] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as 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 or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant has a “severe medically determinable . . . impairment . . . or a combination of impairments” that has lasted or is expected to last for at least one year; and (3) the impairment(s) either meet or equal one of the Listings[2] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden of proof shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Duncan was born in 1972, dropped out after the 10th grade, and worked for several years as a waitress, and for short periods as a housekeeper and a certified nursing assistant. AR 93, 110, 263-66, 277-79.[3] Ms. Duncan filed applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) on December 3, 2009-alleging disability since August 6, 2009 due to joint, muscle, and bone pain, a stomach ulcer, and chronic diarrhea. AR 93-100, 110. The Social Security Administration (“SSA”) denied her claims initially on February 25, 2010. AR 55-63. The SSA denied her claims on reconsideration on July 15, 2010. AR 66-72. Ms. Duncan requested a hearing before an ALJ. AR 73-74.[4] On October 4, 2011, ALJ W. Thomas Bundy held a hearing. AR 21-30. ALJ Bundy issued his unfavorable decision on October 17, 2011. AR 9-20. Ms. Duncan requested review by the Appeals Council, which, on March 23, 2013, denied review. AR 1-8. Ms. Duncan first appealed to this Court on May 16, 2013. See Duncan v. Colvin, 13cv459 WPL, Doc. 1 (D.N.M. May 16, 2013). On January 26, 2015, United States Magistrate Judge William Lynch remanded this case to allow the ALJ to (1) conduct a proper credibility assessment of Ms. Duncan; (2) obtain and discuss factual information about the physical demands of Ms. Duncan's past relevant work; (3) order a consultative exam to assess whether Ms. Duncan had Guillain-Barre Syndrome. See AR 407-27.

         The Appeals Council vacated the final decision of the Commissioner and remanded the case to the ALJ for further proceedings consistent with the Court's order. AR 431. The Appeals Council also ordered the ALJ to consolidate Ms. Duncan's subsequent claims for DIB and SSI- filed on May 13, 2013-with this case on remand. Id. ALJ Lillian Richter held a hearing on March 15, 2016. AR 294-352. After this hearing, the SSA sent Ms. Duncan for a consultative physical exam with Dr. Carlos Pastrana. AR 1202-08. ALJ Richter held a supplemental hearing on February 2, 2017. AR 260-93. The ALJ issued her unfavorable decision on March 8, 2017. AR 223-59.

         At step one, the ALJ found that Ms. Duncan had not engaged in substantial, gainful activity since August 9, 2009, her alleged onset date. AR 228. At step two, the ALJ found that Ms. Duncan suffered from the following severe impairments:

obesity, degenerative changes in her right foot, mild hallux valgus deformity in the right foot, osteoarthritis in both feet, Baker's cyst/bursitis in the left knee, mild degenerative disc disease at ¶ 5/S1, diffuse musculoskeletal pain syndrome, sleep disorder, mild degenerative disease in the right hand, fibromyalgia, mood disorder, chronic headaches, and bilateral plantar fascial fibromatosis.

AR 229. At step three, the ALJ found that none of Ms. Duncan's impairments, alone or in combination, met or medically equaled a Listing. AR 229-32. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Duncan's RFC. AR 232-48. The ALJ found Ms. Duncan had the RFC to perform sedentary work,

except that she can lift, carry, push and pull ten pounds occasionally and five pounds frequently; can stand/walk for two hours and sit for six hours in an eight-hour day. The claimant is limited to performing work that is primarily performed at the workstation. The claimant can occasionally climb ramps and stairs, can never climb ladders, ropes and scaffolding, can occasionally crouch, stoop, kneel, crawl, can never balance, and should avoid exposure to unprotected heights and moving mechanical parts. The claimant can frequently handle and finger, bilaterally. The claimant can occasionally reach overhead, bilaterally, and can frequently reach in all other directions. The claimant is limited to simple, routine, and repetitive work, can have frequent contact with supervisors and coworkers and occasional contact with members of the public. The claimant is limited to a workplace with few changes in the routine work setting and is limited to making simple work related decisions. The claimant is limited to work at reasoning levels 1 or 2.

AR 232.

         At step four, the ALJ concluded that Ms. Duncan was unable to perform her past relevant work as an informal waitress, [5] a nurse assistant, or a hospital cleaner. AR 248. The ALJ found Ms. Duncan was not disabled at step five, concluding that she still could perform jobs that exist in significant numbers in the national economy-such as a stuffer, table worker, and addresser. AR 249-50. Because this Court previously remanded Ms. Duncan's case, she was not required to seek Appeals Council review again, and the ALJ's decision stands as the final decision of the Commissioner. See 20 C.F.R. § 404.984(a). Ms. Duncan timely appealed to this Court on July 5, 2017. Doc. 1.[6]

         IV. Ms. Duncan's Claims

         Ms. Duncan raises three arguments for reversing and remanding this case: (1) the ALJ erred by impermissibly picking and choosing among the limitations found by administrative examining consultants Dr. Carlos Pastrana and Dr. Deborah Kos; (2) the ALJ erred by improperly rejecting the opinions of treating providers Dr. Robert Mayfield and Carol Morrel, PA-C; and (3) the ALJ's step five finding was not supported by substantial evidence. Doc. 18 at 14-25. Because I recommend remand based on the ALJ's error in picking and choosing among the moderate limitations found by administrative examining consultant Dr. Carlos Pastrana, I do not address the other alleged errors, which “may be affected by the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         V. Analysis

         Ms. Duncan argues that the ALJ impermissibly picked and chose among the moderate limitations found by Dr. Carlos Pastrana. Doc. 18 at 14-17. She argues that the ALJ's failure to explain why she adopted some of Dr. Pastrana's limitations while rejecting others requires remand. Id. The Commissioner argues that this was not error because the ALJ “assessed an RFC that was generally consistent with, if not more restrictive than, Dr. Pastrana's ultimate conclusions as to [Ms. Duncan's] functional abilities.” Doc. 22 at 11. For the reasons outlined below, I agree with Ms. Duncan.

         Although an ALJ need not discuss every piece of evidence, he or she is required to discuss the weight assigned to each medical source opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). Specifically, when assessing a plaintiff's RFC, an ALJ must explain what weight is assigned to each opinion and why. SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996).[7] “If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). “[T]here is no requirement in the regulations for a direct correspondence between an RFC finding and a specific medical opinion on [a specific] functional capacity” because “the ALJ, not a physician, is charged with determining a claimant's RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (alteration and internal quotation marks omitted)); see also Wells v. Colvin, 727 F.3d 1061, 1071 (10th Cir. 2013) (“exact correspondence between a medical opinion and the mental RFC is not required”). Nevertheless, “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” Chapo, 682 F.3d at 1292 (quoting Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007)). An ALJ “must discuss the uncontroverted evidence he chooses not to rely upon, as well as ...


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