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Tsosie v. Berryhill

United States District Court, D. New Mexico

September 20, 2018

JOSEPH TSOSIE, 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 November 27, 2017, in support of Plaintiff Joseph Tsosie'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 February 2, 2018, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 21.) The Commissioner filed a Response in opposition on March 31, 2018 (Doc. 24), and Plaintiff filed a Reply on April 17, 2018. (Doc. 25.) 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 not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant Joseph Tsosie (“Mr. Tsosie”) alleges that he became disabled on June 9, 2012, at the age of forty-seven because of spurs on his spine, right knee pain, left hip dislocation, asthma, chipped elbows, arthritis to all joints, stomach ulcer, vision problems, and memory loss. (Tr. 275, 432, 443.[2]) Mr. Tsosie completed the ninth grade in 1984/1985, and was self-employed making dream catchers. (Tr. 444.) Mr. Tsosie reported he stopped working on February 1, 2007, due to his medical conditions. (Tr. 443.)

         On July 15, 2013, Mr. Tsosie protectively filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 178, 391-400.) Mr. Tsosie's application was initially denied on February 28, 2014. (Tr. 274, 275-87, 303-06.) It was denied again at reconsideration on August 13, 2014. (Tr. 288, 289-302, 309-12.) On August 27, 2014, Mr. Tsosie requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 313.) ALJ Ann Farris conducted a hearing on September 18, 2015, but ended the hearing after Mr. Tsosie decided that he wanted legal representation. (Tr. 233-39.) ALJ Eric Weiss conducted a second hearing on April 12, 2016. (Tr. 202-32.) Mr. Tsosie appeared in person at the hearing with attorney representative Jonathan Woods.[3] (Id.) The ALJ took testimony from Mr. Tsosie (Tr. 206-225), and an impartial vocational expert (“VE”), Sandra Trost (Tr. 226-31). On May 12, 2016, ALJ Weiss issued an unfavorable decision. (Tr. 175-194.) On June 5, 2017, the Appeals Council issued its decision denying Mr. Tsosie's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On August 3, 2017, Mr. Tsosie 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 he 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, he is not disabled regardless of his 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, he 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 his “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 [his 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 his 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 Mr. Tsosie was not disabled at step four of the sequential evaluation. (Tr. 192-93.) Specifically, the ALJ determined that Mr. Tsosie had not engaged in substantial gainful activity since July 15, 2013, the date of his application. (Tr. 180.) He found that Mr. Tsosie had severe impairments of osteoarthritis, lumbar spine disc bulge, cervical spine compression deformity of C5, asthma, obstructive sleep apnea, pain disorder with both psychological and medical factors, somatoform disorder, dependent personality disorder, and avoidant personality disorder. (Id.) The ALJ also found that Mr. Tsosie had nonsevere impairments of obesity, colonic diverticulosis, gastroesophageal reflux disease (GERD), erythrocytosis, and rule out factitious disorder. (Tr. 180-81.) The ALJ, however, determined that Mr. Tsosie's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 181-83.) As a result, the ALJ proceeded to step four and found that Mr. Tsosie had the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except that he was

able to lift 20 pounds occasionally and lift and/or carry 10 pounds frequently. His ability to push and pull is only limited by his ability to lift and/or carry. He is able to walk and stand for 6 hours in an 8-hour workday, with normal breaks. He is able to sit for 6 hours per 8-hour workday, with normal breaks. He is able to occasionally climb ramps and stairs, but he can never climb ladders, ropes or scaffolds. He can occasionally stoop, crouch, kneel and crawl. He must avoid more than occasional exposure to extreme cold and heat, humidity, unprotected heights, dangerous moving machinery and pulmonary irritants, such as smoke, dust, fumes, odors and gases. He is able to understand, remember and carry out simple instructions, to make commensurate work related decisions and to adjust to routine changes in the work setting. He is able to interact frequently with supervisors, co-workers and the public. He is able to maintain concentration, persistence and pace for 2 hours at a time during the workday, with normal breaks.

(Tr. 183.) The ALJ further concluded at step four that Mr. Tsosie was able to perform his past relevant work as an assembler, small products. (Tr. 192.) Although the ALJ determined that Mr. Tsosie was capable of performing his past relevant work, the ALJ made alternative step five findings that based on Mr. Tsosie's age, education, work experience, RFC, and the testimony of the VE, there were jobs that existed in significant numbers in the national economy that Mr. Tsosie could perform. (Tr. 192-93.)

         In support of his Motion, Mr. Tsosie argues that (1) the ALJ failed to develop the record by denying Mr. Tsosie's counsel's request to obtain a second consultative psychological examination that specifically included intelligence and cognitive testing; and (2) the ALJ failed to account for all the limitations assessed by examining psychological consultant, Dr. Carl B. Adams, Ph.D. (Doc. 21 at 14-21.)

         For the reasons discussed below, the Court finds there is no reversible error.

         A. Relevant Evidence Related to Mr. Tsosie's Mental Impairments[5]

         1. Carl B. Adams, Ph.D.

         On February 10, 2014, Mr. Tsosie presented to State agency examining psychological consultant Carl B. Adams, Ph.D., for a consultative mental status evaluation. (Tr. 775-78.) Dr. Adams reviewed two medical reports related to Mr. Tsosie's physical impairments, [6] and a Third-Party Functional Report prepared by Georgia Begay, Mr. Tsosie's niece. (Tr. 775.) Dr. Adams took various histories, including personal, educational, vocational, marital and medical. (Tr. 776-77.) Mr. Tsosie reported, inter alia, that he had completed the ninth grade and that his doctor told him not to go to school anymore because of his health problems. (Tr. 776.) As a result, Mr. Tsosie left school. (Id.) Mr. Tsosie reported that he had not completed a GED or pursued further education. (Id.) As for his alleged memory loss, Mr. Tsosie reported to Dr. Adams that he will forget where is going or why he was going into a room, and forgets where he put something or what he was going to do. (Tr. 777.) Mr. Tsosie reported that he never had problems with depression or anxiety. (Id.)

         On mental status exam, Dr. Adams observed that Mr. Tsosie was able to attend and concentrate, and make eye contact, and that Mr. Tsosie expressed himself. (Tr. 776.) Dr. Adams noted that Mr. Tsosie's mood was stable with mild flattening; that his long and short-term recall were estimated in the low-average range; that he was a reasonably good historian; that his insight was grossly intact; that his judgment was adequate; that he was cooperative; and that his stream of thought was within normal limits. (Id.)

         Dr. Adams' Axis I diagnoses included pain disorder with both psychological and medical factors; Somatoform Disorder; and rule out Factitious Disorder. (Tr. 778.) His Axis II diagnoses included Dependent Personality Disorder and Avoidant ...


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