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Baca v. Berryhill

United States District Court, D. New Mexico

September 21, 2018

DIEDRA BACA, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION TO REVERSE AND REMAND AND DISMISSING CASE WITH PREJUDICE

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.

         Diedra Baca seeks review of the Social Security Administration's final action finding her not disabled under Title II of the Social Security Act for the period of October 1, 2006 to June 30, 2011, the date Baca last qualified for insurance benefits (“date last insured”). (Doc. 22). After the agency denied her application for disability benefits initially and on reconsideration, Baca received a hearing before an Administrative Law Judge (“ALJ”). (AR 43-86; 87-112). In the written decision that followed, the ALJ determined at step three of the five-part sequential process for evaluating disability, see 20 C.F.R. § 404.1520(b), that none of Baca's severe physical and mental conditions qualified as per se disabling under the agency's Listing of Impairments. (AR 19-21); 20 C.F.R. pt. 404, subpt. P, app. 1. At steps four and five, the ALJ concluded that, while Baca could no longer work as a machine operator, cashier, or food server, she retained the residual functional capacity (“RFC”) to perform some sedentary work. (AR 22-34). According to a vocational expert who testified at the hearing, Baca could find employment within her RFC as a patcher, surveillance monitor, and table worker, jobs available in the national economy in significant numbers. (AR 35-36).

         Baca argues the ALJ erred in rejecting limitations from two treating providers, Roland Sanchez, MD and David Pacheco, PA-C, she says would require a more restrictive RFC, and by relying on the unsigned records of a third treating provider in concluding that Baca was not disabled as of her date last insured. The Court reviews the ALJ's decision for substantial evidence and to determine whether the ALJ followed the law. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). Having so reviewed and with consent of the parties to render a final decision in this matter, see 28 U.S.C. § 636(c); (Doc. 16), the Court denies Baca's motion to reverse and remand and dismisses the case with prejudice.

         The crux of Baca's contention is whether the ALJ improperly relied on unsigned, “dictated-but-not-read” records of treating physician Pamela Black, MD. The ALJ used Dr. Black's findings, in part, as a basis for rejecting Baca's claims of disabling impairments and assigning less weight to other providers. Baca asserts that the records are unreliable and unauthenticated hearsay that cannot be considered. Although the Tenth Circuit has not addressed the issue of unsigned records, the ALJ in this case asked Baca's attorney at the administrative hearing whether he had reviewed the file, whether it was complete, and whether there was any objection to the relevancy of the documents.[1] The attorney answered yes to the first two questions and no to the third; the issue is, therefore, waived here, and the ALJ was not required to develop the record further.[2] See Wall v. Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009) (explaining that “the ALJ may reasonably rely on counsel to identify the issue or issues requiring further development”) (citation omitted); Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (explaining that “waiver principles developed in other litigation contexts are equally applicable to social security cases”); Birkinshaw v. Astrue, 490 F.Supp.2d 1136, 1141-42 (D. Kan. 2007) (finding waiver of objections to medical expert's competency where claimant failed to object to testimony at hearing).

         Even had Baca preserved the issue, the Court agrees with other district courts in the Tenth Circuit that the lack of signature is typically of concern only where it is “impossible to identify an unsigned opinion as a medical opinion” coming “from an ‘acceptable medical source' as required by the regulations” or where “it may be impossible to identify the period to which an undated opinion applies in determining the onset date of an impairment or of disability.” Lyons v. Astrue, 2012 U.S. Dist. LEXIS 129576, at *26-27 (N.D. Okla. Sep. 12, 2012) (quoting Peckham v. Astrue, 780 F.Supp.2d 1195, 1204 (D. Kan. 2011)). These concerns are not present here, and contrary to Baca's contention, the only requirement in the regulations is that medical records from consultative examiners hired by the agency be signed. See 20 C.F.R. § 404.1519o(b)(1).

         As for Dr. Sanchez, the ALJ properly assigned little weight to his opinion that Baca could not walk 100 feet without stopping to rest.[3] Dr. Sanchez's assessment came in the form of a box checked in August 2013 on a “Certificate of Eligibility for Parking Placard” issued by the New Mexico Motor Vehicle Division. (AR 695). Even assuming this application constitutes a treating source's opinion of a medically-based functional limitation, the document does not purport to describe-or even relate to-Baca's condition prior to her date of last insured, which the ALJ correctly took into consideration. See Hansel v. Berryhill, 2017 U.S. Dist. LEXIS 66356, at *13-14 (D. Kan. May 1, 2017) (holding “[i]t was not error to discount [a treating doctor's] opinion because it was formed after Plaintiff's date last insured”); Nelson v. Colvin, 2016 U.S. Dist. LEXIS 94675, at *8-9 (D. Utah July 19, 2016); Nelson v. Colvin, 2016 U.S. Dist. LEXIS 94675, at *8-9 (D. Utah July 19, 2016) (holding that ALJ reasonably assigned little weight to treating source where his “opinion was not retrospective”).

         Baca cites no authority that would require the ALJ to give controlling weight to a non-retrospective walking restriction or otherwise engage in the treating-physician paradigm [4] under the circumstances. (See Doc. 22); but see Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (framing the “[t]he relevant analysis” as whether the plaintiff “was actually disabled prior to the expiration of her insured status”). Regardless, the ALJ, in substance, applied the treating physician rule.[5] The ALJ specifically noted Dr. Sanchez had treated Baca since 2005 and Dr. Sanchez's singular limitation was not borne out by Baca's own function reports or supported in the medical evidence, including other treating providers. (AR 31-32). While it is true that the ALJ did mention “tests performed, ” it is unclear how that regulatory factor would apply to the walking restriction assessed, or that Dr. Sanchez did any testing to formulate his opinion. See SSR 06-3p, 2006 SSR LEXIS 5 (Aug. 9, 2006) (“Not every factor for weighing opinion evidence will apply in every case.”).

         For the same reasons, the ALJ did not err in rejecting PA-C Pacheco's opinion that Baca could not sit, stand, or walk for even two hours in a workday; lift ten pounds; reach, handle, and manipulate objects with her hands without limitation; perform work in a competitive environment more than fifty percent of the time; and undertake simple tasks without her pain or symptoms constantly interfering. (AR 667-68). PA-C Pacheco's January 1, 2015 “Medical Source Statement of Ability To Do Work-Related Activities” did not purport to be retroactive and, thus, is of little value to determining disability as of the date of last insured. Even so, the ALJ correctly pointed out that the limitations conflict with record evidence, including admissions from Baca that she walked five miles in 2010, which Baca does not dispute. (AR 31-32). In Id. (citation omitted). sum, the ALJ's determination that Baca is capable of performing sedentary work and jobs are available that match her RFC is supported by substantial evidence and free from legal error.

         IT IS, THEREFORE, ORDERED that Plaintiffs Motion to Reverse/Remand (Doc. 22) is DENIED and this matter is DISMISSED WITH PREJUDICE.

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Notes:

[1] The exchange reads, in pertinent part:

ALJ: . . . Mr. Vigil [Baca's attorney], have you and the Claimant had an opportunity to review ...

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