Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sida v. Social Security Administration

United States District Court, D. New Mexico

October 29, 2018

DWAYNE SIDA, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION NANCY A. BERRYHILL, acting Commissioner of SSA, Defendant.

          Michael D. Johnson Laura J. Johnson Michael D. Armstrong Law Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          John C. Anderson United States Attorney Manuel Lucero Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico and Dorrelyn Dietrich Steven Martyn Social Security Administration Office of the General Counsel Denver, Colorado Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER [1]

         THIS MATTER comes before the Court on the Plaintiff's Motion to Reverse and Remand for Rehearing with Supporting Memorandum, filed January 24, 2018 (Doc. 24)(“Motion”). The Motion is fully briefed. See Brief in Response to Plaintiff's Motion to Reverse and Remand the Agency's Administrative Decision, filed March 23, 2018 (Doc. 26)(“Response”); Reply in Support of Plaintiff's Motion to Reverse and Remand for a Rehearing, filed April 23, 2018 (Doc. 30). Having meticulously reviewed the entire record and the briefing, the Court concludes that the Motion has merit and that the Court should reverse and remand the Administrative Law Judge's ruling.[2]

         FACTUAL BACKGROUND

         Plaintiff Dwayne Sida was born August 6, 1970. See Administrative Record at 71, filed October 20, 2017 (Doc. 18-1)(“AR”). He graduated high school and attended “a couple of years of college, ” but did not receive a degree. AR at 45. From 1989 to 2011, Sida held semi-continuous employment, working as a heavy equipment operator, sandblaster, long-haul truck driver, and maintenance man. See AR at 220.

         Sida filed applications for both Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the Social Security Act, 42 U.S.C. § 404 et seq. and § 1381 et seq. (“the Act”), on November 6, 2012. See AR at 191-98. Sida claimed disability beginning on November 1, 2010, based on a shattered left foot, post-traumatic stress disorder (“PTSD”), depression, high blood pressure, and anxiety. See AR at 71. The Social Security Administration (“SSA”) denied Sida's application initially and upon reconsideration. See AR at 79-80, 89-90. At his request, Sida received a de novo hearing before Administrative Law Judge (“ALJ”) Barry O'Melinn, at which Sida, Sida's attorney, and a vocational expert (“VE”) appeared. See AR at 32-70. On March 4, 2016, ALJ O'Melinn issued his decision, concluding that Sida is not disabled within the Act's meaning. See AR at 14-26. Sida appealed to the SSA Appeals Council, but it declined review. See AR at 1-3. As a consequence, ALJ O'Melinn's decision became the SSA Commissioner's final decision. See 20 C.F.R. § 422.210(a) (2018).

         PROCEDURAL BACKGROUND

         Sida then timely filed his appeal with this Court. See Complaint, filed June 13, 2017 (Doc. 1). Sida advances three grounds for relief. First, he argues that ALJ O'Melinn breached his duty to develop the administrative record regarding Sida's psychological impairments. See Motion at 15-18. Next, he contends that ALJ O'Melinn improperly rejected the opinion of Caryn Stone, his treating licensed-mental-health counselor. See Motion at 18-22. Last, he contends that ALJ O'Melinn's step five analysis was legally infirm and bereft of substantial evidence. See Motion at 22-27.

         1. The ALJ's Decision.

         ALJ O'Melinn issued his decision on March 4, 2016. See AR at 11. At step one, he concludes that Sida has not engaged in substantial gainful activity since the alleged disability onset date of November 1, 2010. See AR at 16. At step two, ALJ O'Melinn finds Sida's bilateral shoulder pain and torn rotator cuff, along with his “mental disorders variously diagnosed as posttraumatic stress disorder, depression[, ] and anxiety, ” to be severe impairments. AR at 17. In contrast, ALJ O'Melinn finds Sida's hypertension, foot pain, thyroid and liver disorders, and alcohol abuse to be non-severe. See AR at 17-18.

         At step three, ALJ O'Melinn concludes that none of Sida's impairments, alone or in combination, meet or medically equal the severity of a listed impairment in 20 C.F.R. § 404, Subpart P, App. 1. See AR at 19-20. Specifically, ALJ O'Melinn considers Sida's mental impairments under Listing 12.04 (affective disorders) and 12.06 (anxiety-related disorders). ALJ O'Melinn determines that the evidence does not satisfy the paragraph B criteria of these Listings, [3] “[b]ecause the claimant's mental impairments do not cause at least two ‘marked' limitations or one ‘marked' limitation and ‘repeated' episodes of decompensation, each of extended duration.” AR at 20. He then explains his reasoning regarding paragraph B's four subparts.

         ALJ O'Melinn begins by evaluating Sida's activities of daily living (“ADLs”). See AR at 19. ALJ O'Melinn finds Sida to have only a mild restriction. See AR at 19. ALJ O'Melinn references Sida's testimony that “he could do household cleaning and chores, ” along with Sida's self-reporting that he can clean, perform most house repairs, do yard work, or work with firewood for up to two hours per day. AR at 19. Moreover, ALJ O'Melinn focuses on Sida's self-reporting that, to the extent he has limitations in personal care, they “[are] not due [to] mental functioning but rather lack of transportation or money.” AR at 19.

         Second, ALJ O'Melinn finds Sida has only mild difficulties with social functioning. ALJ O'Melinn cites statements from Sida's “Adult Function Report, ” AR at 236-45, in support, including that Sida can shop for basic needs when able to find transportation, and that Sida receives and maintains food stamps. See AR at 19. ALJ O'Melinn further observes that Sida visits his family on a regular basis, sees his girlfriend daily, and reports no general difficulties in getting along with others. See AR at 19.

         Third, ALJ O'Melinn finds that Sida has moderate difficulties with concentration, persistence, and pace. ALJ O'Melinn describes Sida's accounts of difficulties, including difficulty following written instructions, finishing what he starts, and handling stress well. See AR at 19. ALJ O'Melinn does not, however, take all of Sida's self-reported challenges at face value. Indeed, while Sida “reported he could not handle money by paying bills, counting change, etc., ” ALJ O'Melinn emphasizes Sida's own explanation that “the reason was due to [Sida's] lack of a job.” AR at 19. Similarly, while Sida alleges memory problems, “the only example he gave is walking from one room to another and forgetting what he was going to the new room to get.” AR at 19. To ALJ O'Melinn, this problem represents “a routine experience, ” which, when considered alongside Sida's other self-reporting, leads ALJ O'Melinn to find no more than a moderate difficulty in this area.

         ALJ O'Melinn concludes his paragraph B discussion by finding that Sida “has experienced no episodes of decompensation, which have been of extended duration.” AR at 20.

         Alongside his paragraph B findings, ALJ O'Melinn also considers whether Sida qualifies under the paragraph C criteria.[4] ALJ O'Melinn answers this inquiry in the negative, finding that “the evidence fails to establish the presence of the ‘paragraph C' criteria.” AR at 20.

         After concluding that none of Sida's impairments satisfy an applicable Listing, ALJ O'Melinn moves to step four and assesses Sida's residual functional capacity (“RFC”). See AR at 16-21. After stating that he had given “careful consideration of the entire record, ” ALJ O'Melinn determines that Sida

has the residual functional capacity to perform light work as defined in 20 [C.F.R. §§] 404.1567(b) and 416.967(b) except that he is further limited to occasional pushing or pulling with the lower left extremity. He is limited to frequently climbing ramps or stairs, occasionally climbing ladders, ropes or scaffolds, occasionally balancing, stooping, kneeling, crouching, crawling, and occasional bilateral reaching. He can understand, carry out and remember simple instructions and make commensurate work related decisions, respond appropriately to supervision, coworkers and work situations, deal with routine changes in work setting, and maintain concentration persistence and pace for up to and including two hours at [a] time with normal breaks throughout the work day.

         AR at 20.

         To develop Sida's RFC, ALJ O'Melinn relies on three separate grounds. First, ALJ O'Melinn renders an adverse credibility finding against Sida, opining that Sida's “statements concerning the intensity, persistence[, ] and limiting effects of [his] symptoms are not entirely credible.” AR at 21. To support his finding, ALJ O'Melinn contrasts Sida's statements concerning the severity of his symptoms with evidence of record and finds that the evidence does not substantiate Sida's contentions. See AR at 21-23.

         As a threshold issue, ALJ O'Melinn addresses two allegations that Sida advances. First, ALJ O'Melinn challenges Sida's contention that the federal Division of Vocational Rehabilitation (“DVR”) stopped assisting him because he was filing for disability. ALJ O'Melinn dismisses this supposition, opining that “[i]t makes little sense that a vocational rehabilitation agency would refuse to work with a person with disabilities.” AR at 21. ALJ O'Melinn concludes that Sida's allegation that the “DVR would [n]ot work with him due to alleged disability is incredible.” AR at 21. Similarly, ALJ O'Melinn questions Sida's account that “he had to sell his sandblasting equipment to pay child support.” AR at 21. ALJ O'Melinn contrasts this statement with Sida's testimony that he “had his license revoked” and had “been incarcerated for non-payment of child support in the past.” AR at 21. ALJ O'Melinn reasons that Sida's “attempt to open his own business failed for reasons unrelated to disability, ” and finds that Sida's statements on both the closure of the sandblasting company and DVR's unwillingness to assist him based on disability “undermine[s] his credibility and the merits of his claim.” AR at 21.

         ALJ O'Melinn also assigns “little weight” to Sida's allegations concerning the severity of his symptoms and, by O'Melinn's account, “relied upon more credible evidence.” AR at 21. ALJ O'Melinn begins this discussion by recalling Sida's statement that “he has not healed from rotator cuff surgery and that his range of motion is limited, only being able to lift his left arm to shoulder height.” AR at 21. Then, turning to the medical records, ALJ O'Melinn notes that Sida was treated for shoulder pain in July and August 2013, and prescribed medication. See AR at 22. At a routine follow-up in October 2013, Sida reported that his shoulder pain continued, but that he had not started taking his medication. See AR at 22. The clinician observed that Sida smelled of alcohol and declared that he was at the appointment only to build up his case for disability. See AR at 22. In the ALJ O'Melinn's eyes, this “medication non-compliance coupled with the above statement by [Sida] diminishes the credibility of [Sida].” AR at 22.

         ALJ O'Melinn also discusses Sida's shoulder pain from 2014, which Sida describes as originating when he “was fighting and fell on a chair.” AR at 22. Falling out of a tree the next year aggravated Sida's injury. See AR at 22. Sida underwent surgery in March 2015, “and follow up appointments indicated steady improvement in pain level and range of motion.” AR at 22. Clinical notes remark that Sida “had full range of motion, still had some popping in the shoulder[, ] but was not in any pain” at his July 2015, follow up. AR at 22. Moreover, ALJ O'Melinn emphasizes that Sida participated in physical therapy from April through July 2015, for eleven visits, and that notes indicate that he “reached maximum rehabilitation potential [and] no further physical therapy was needed.” AR at 22. Based on these clinical observations, ALJ O'Melinn opines that, “[w]hile the fact that [Sida] underwent surgery suggests the symptoms were genuine, this is offset by the fact that the record reflects the surgery was generally successful in relieving the symptoms.” AR at 22.

         ALJ O'Melinn closes his adverse credibility finding by comparing Sida's statements concerning his mental impairments to the medical evidence of record. Sida reports treatment from several providers for depression, PTSD, and anxiety beginning in 2013 at Ben Archer Health Center. See AR at 22. Sida reports that, at that time, he “hear[d] music in his ears at times along with ringing but denied visual hallucinations.” AR at 22. At a follow-up appointment, Sida describes continued anxiety, but also relates that he has not started his prescribed medication and has stopped attending behavioral therapy. See AR at 22. Later treatment at La Frontera in 2014 and 2015 reveals a similar pattern. See AR at 23. Sida was treated for depression and anxiety, but treatment notes record further non-compliance with medication. See AR at 23. Nevertheless, “treatment records note progress with medication effectiveness as they adjust the medication and amounts, ” including an escalation of Sida's Global Assessment of Functioning (“GAF”) scores[5]from 35 to the 70s in the most recent tests of April and June 2015. AR at 23. ALJ O'Melinn drew two conclusions from Sida's mental health history: (i) that his “non-compliance with medication demonstrates a possible unwillingness to do that which is necessary to improve his condition, ” which might indicate his symptoms are less severe than purported; and (ii) that, with proper treatment, Sida demonstrates “significant improvement.” AR at 22-23.

         ALJ O'Melinn also weighs the statements of Sida's girlfriend, Deborah Apodaca, as the second basis for his RFC finding. In ALJ O'Melinn's estimation, the statements that Apodaca provide concerning Sida's condition “appear to only repeat the subjective complaints already testified to and reported by [Sida].” AR at 24. Furthermore, ALJ O'Melinn opines that Apodaca is neither a medical professional nor an uninterested party. See AR at 24. “Most importantly, ” ALJ O'Melinn concludes, “the clinical or diagnostic medical evidence that is discussed more thoroughly herein does not support [her] statements.” AR at 24. Thus, ALJ O'Melinn finds Apodaca's statements “not credible.” AR at 24.

         Third, ALJ O'Melinn relies on the medical evidence of record. To begin, ALJ O'Melinn accords “some weight” to consultative examiner Dr. Marian Landau, D.O. AR at 23. Dr. Landau finds Sida has full motor strength in the proximal and distal muscle groups in the upper and lower extremities. See AR at 23. Dr. Landau finds that Sida has tenderness in his left forefoot, and ultimately diagnoses him with “chronic left foot pain” and uncontrolled hypertension. AR at 23. ALJ O'Melinn accords the opinion some weight, rather than significant weight, as he finds that Dr. Landau “did not have the opportunity to review additional evidence only available at the hearing level regarding [Sida's] impairments, including medical improvement.” AR at 23.

         ALJ O'Melinn also assigns “some weight” to the non-examining agency consultants' opinions who assessed Sida's physical impairments. AR at 23. These two doctors -- Dr. Karine Lancaster, M.D., and Dr. Tom Dees, M.D. -- both opine that Sida “is capable of work at the medium exertional level except [he] is further limited to occasional push/pull with the left lower extremities, can frequently climb ramps and stairs, occasionally climb ladders, ropes[, ] and scaffolds, occasionally balance, frequently crouch[, ] and occasionally crawl.” AR at 23. ALJ O'Melinn hesitates to grant these opinions more than “some weight, ” as he finds Dr. Landau's opinions “more consistent with the record as a whole, ” and also because neither Dr. Lancaster nor Dr. Dees has “the benefit of considering the additional evidence that was available only after the reconsideration determination, including subsequent medical evidence and the hearing testimony.” AR at 23.

         Next, ALJ O'Melinn considers the non-examining agency psychologists' opinions and accords their opinions “little weight.” AR at 23-24. These clinicians, Dr. Ralph Rabinowitz, Ph.D., and Dr. Thomas VanHosse, Ph.D., both rate Sida's mental impairments as “less than non-severe.” AR at 24. ALJ O'Melinn discounts their opinions, as neither has had the opportunity to review the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.