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Ramirez v. Berryhill

United States District Court, D. New Mexico

October 10, 2018

VICTORIA M. RAMIREZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse or Remand (Doc. 16) filed on March 11, 2018. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. See Docs. 7, 13, 14. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be denied.

         I. Procedural History

         On November 1, 2013, Ms. Victoria Ramirez (Plaintiff) protectively filed an application with the Social Security Administration for Supplemental Security Income under Title XVI of the Social Security Act. Administrative Record[1] (AR) at 169-75. Plaintiff alleged a disability onset date of May 16, 1995, which she later amended to November 1, 2013. AR at 41, 169. Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 69-77) and on reconsideration (AR at 78-89). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her SSI application. AR at 110-12.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 36-67. ALJ Michelle K. Lindsay issued an unfavorable decision on June 15, 2016. AR at 17-35. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 103-05), which the Council denied on June 19, 2017 (AR at 1-6). Consequently, the ALJ's decision became the final decision of the Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         II. Applicable Law and the ALJ's Findings

          A claimant seeking disability benefits must establish that 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); see also 20 C.F.R. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

         The claimant has the burden at the first four steps of the process to show: (1) she is not engaged in “substantial gainful activity”; (2) she 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) her impairment(s) meet or equal one of the listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the assessment of the claimant's residual functional capacity (RFC), she is unable to perform her past relevant work. 20 C.F.R. § 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional description of the work-related abilities [a claimant] retain[s] in spite of her medical impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. § 416.945(a)(1). If the claimant meets “the burden of establishing a prima facie case of disability[, ] . . . the burden of proof shifts to the Commissioner at step five to show that the claimant retains sufficient . . . RFC to perform work in the national economy, given [her] age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v. Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20 C.F.R. § 416.920(a)(4)(v).

         At Step One of the process, ALJ Lindsay found that Plaintiff “has not engaged in substantial gainful activity since November 1, 2013, the application date . . . .” AR at 22 (citing 20 C.F.R. § 416.971-976). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: osteoarthritis of the right knee and ankle; lumbar and cervical strain; headaches; metatarsalgia of the right foot; hypertension; obesity; and, major depression.” AR at 22 (citing 20 C.F.R. § 416.920(c)). The ALJ found that while Plaintiff has “diagnoses of duodenal ulcer and status post treatment for Heliobacter pylori bacterial infection[, ] . . . [t]here is no evidence to support a finding that these conditions, whether considered singly or in combination[, ] significantly impair [Plaintiff's] ability to engage in work activity” and are not severe. AR at 22-23.

         At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 23 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). At Step Four, the ALJ thoroughly considered the evidence of record and found that Plaintiff

has the residual functional capacity to perform less than the full range of light work as defined in 20 [C.F.R. §] 416.967(b). Specifically, the claimant can lift, carry, push, and pull twenty pounds occasionally and ten pounds frequently. She can stand and/or walk for six hours out of an eight-hour workday with normal breaks, and sit for six hours out of an eight-hour workday with normal breaks. She can occasionally climb stairs and ramps, balance, crouch, kneel, or crawl, and can frequently stoop. She must avoid more than occasional exposure to extreme cold, and must avoid unprotected heights and more than moderately loud work environments. She is able to understand, remember, and carry out simple instructions, and is able to maintain attention and concentration to perform simple tasks for two hours at a time without requiring redirection to task. She can have only occasional contact with the general public, and superficial interactions with co-workers and supervisors. She requires work involving no more than occasional change in the routine work setting.

AR at 25.

         ALJ Lindsay concluded that Plaintiff has no past relevant work (AR at 29 - citing 20 C.F.R. § 416.965), but she is able to perform work as a photocopy machine operator, marker, and order caller. AR at 30. The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, since November 1, 2013.” AR at 30 (citing 20 C.F.R. § 416.920(g)).

         III. Legal Standard

         The Court must “review the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id. (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation omitted) (alteration in original)). The Court will “consider whether the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the Commissioner's.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and quotations omitted)).

         “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).

         IV. Discussion

         Plaintiff sets forth four issues in her motion. Plaintiff argues that the ALJ erred in: (1) failing “to properly weigh the opinions of consultative examiner, Dr. Murphy” (Doc. 16 at 8); (2) finding her gastrointestinal issues non-severe and failing to incorporate limitations into Plaintiff's RFC from her non-severe impairments (id. at 10); (3) performing an improper analysis of the non-examining agency consultant, Dr. Chiang (id. at 11); and (4) failing to use the two-step analysis required by SSR 16-3p to evaluate Plaintiff's symptoms (id. at 13).

         A. The Court finds no reversible error in the ALJ's analysis of either Dr. Murphy's or Dr. Chiang's opinions.

         1. Dr. Murphy's examination and opinion.

         Dr. Finian J. Murphy, Ed. D., conducted a mental status examination at the request of Disability Determination Services on April 29, 2014. See AR at 395. Dr.

         Murphy did not receive any of Plaintiff's health records to review. AR at 395. From his interview with Plaintiff, Dr. Murphy reported that she is a high school graduate with trade school certificates in Radio and TV, Police Science, and Graphic Arts. AR at 396. “[S]he last worked in 2010 part time as a census canvasser” but “asserts that she can never work full-time on a regular job due to her multiple medical problems.” AR at 396. Plaintiff reported to him:

She has no energy or motivation to do anything during the day. Because of her multiple medical problems, she believes that part of her has died. She has an extremely poor self image and believes that she is an abject failure. She has become very reclusive and avoids most other people. She states that she has great difficulty concentrating on anything and is easily distracted. . . . She claims that she has had multiple suicidal ideations and has attempted to kill herself [three] times in the past. Her last attempt at suicide was in 2008.

AR at 397. Plaintiff also reported that she has a good relationship with her parents and one sister. AR at 397.

         While Plaintiff appeared depressed and anxious during the evaluation, she maintained good eye contact and was polite and responsive. AR at 397 (noting that Plaintiff's “responses to questions were appropriate and detailed”). Plaintiff's thought processes and movement were within normal limits, and she was oriented in all spheres. AR at 397. Plaintiff correctly answered basic questions such as the date, the city, the current and past presidents of the United States, the current governor, and the state capitol. AR at 397. She could remember three ...


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