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Greer v. Berryhill

United States District Court, D. New Mexico

November 15, 2018

RANDALL SCOTT GREER,, 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. 13) filed May 8, 2018, in support of Plaintiff Randall Scott Greer'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 July 20, 2018, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). (Doc. 19.) The Commissioner filed a Response in opposition on September 6, 2018 (Doc. 21), and Plaintiff filed a Reply on September 28, 2018. (Doc. 22.) 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 that remand is necessary, and the Motion is therefore GRANTED.

         I. Background and Procedural Record

         Claimant Randall Scott Greer (“Mr. Greer”) alleges that he became disabled on May 30, 2003, at the age of forty because of MRSA and depression.[2] (Tr. 220, 224.[3]) Mr. Greer completed high school in 1981, and has worked as a page attendant and administrative assistant for the State of New Mexico. (Tr. 225.) Mr. Greer reported he initially stopped working “for other reasons, ” but that his conditions became severe enough to keep him from working since November 11, 2011. (Tr. 224.)

         On April 11, 2014, Mr. Greer protectively filed an application for Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 18, 191-96.) Mr. Greer's application was initially denied on August 26, 2014. (Tr. 84-92, 93, 122-25.) It was denied again at reconsideration on March 4, 2015. (Tr. 104-16, 117, 129-30.) On March 30, 2015, Mr. Greer requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 132-33.) ALJ James Linehan conducted a hearing on January 11, 2017. (Tr. 40-73.) Mr. Greer appeared in person at the hearing with attorney representative Jonathan Woods.[4] (Id.) The ALJ took testimony from Mr. Greer (Tr. 43-66), and an impartial vocational expert (“VE”), Melissa Brassfield (Tr. 66-72). On February 10, 2017, ALJ Linehan issued an unfavorable decision. (Tr. 15-31.) On January 8, 2018, the Appeals Council issued its decision denying Mr. Greer's request for review and upholding the ALJ's final decision. (Tr. 1-6.) On March 8, 2018, Mr. Greer 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.”[5] 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. Greer was not disabled at step five of the sequential evaluation. (Tr. 29-31.) Specifically, the ALJ determined that Mr. Greer had not engaged in substantial gainful activity since May 30, 2003, his alleged onset date.[6] (Tr. 20.) He found that Mr. Greer had severe impairments of arthralgia, anxiety, depression, and posttraumatic stress disorder (PTSD). (Id.) The ALJ also found that Mr. Greer had nonsevere impairments of a history of MRSA, alcohol abuse disorder, hypertension, sleep apnea, anemia, and hearing loss. (Tr. 21.) The ALJ determined, however, that Mr. Greer's impairments did not meet or equal in severity one the listings described in Appendix 1 of the regulations. (Tr. 21-23.) As a result, the ALJ proceeded to step four and found that Mr. Greer had the residual functional capacity to

lift 20 pounds . . . occasionally . . . and carry 10 pounds frequently. The claimant can stand and walk alternatively for 2 hours each activity out of 8 hours per day with sitting occurring intermittently throughout the remaining 6 hours of the day. The claimant can reach, push and pull with upper extremities up to 8 hours per 8-hour day. The claimant can use hands for grasping, holding and turning objects up to 8 hours per 8-hour day. The claimant can climb, stoop, kneel, crouch, crawl and balance up to 6 hours per 8-hour day. In addition, claimant is limited to work that is of SVP level 2 or less as defined in the DOT with a limited ability to apply common sense understanding to remember and carry out very short and simple written or oral instructions, and can make simple work-related decisions with occasional interaction with supervisors, co-workers and general public.

(Tr. 23.) The ALJ further concluded at step four that Mr. Greer had no past relevant work. (Tr. 29.) At step five, the ALJ determined that based on Mr. Greer'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. Greer could perform. (Tr. 29-30.)

         In support of his Motion, Mr. Greer argues that (1) the ALJ failed to properly account for the medical opinion of treating physician Dr. Patricia Carbajal, M.D.; (2) that the ALJ failed to articulate appropriate reasons for rejecting the medical opinions of PA-C Matthew Fitch and CNP Cheryl Brubaker; and (3) that the ALJ failed to resolve a conflict between the DOT and the VE testimony regarding the reasoning level requirements of the jobs identified, and that after eliminating two of the three jobs identified that conflict with the RFC, the resulting number of jobs is so low that it requires a Trimiar analysis. (Doc. 19 at 11-25.)

         For the reasons discussed below, the Court finds (1) the ALJ provided appropriate explanations that are supported by substantial evidence for the weight he accorded the medical source opinions; (2) the ALJ failed to resolve the conflict between the VE testimony and DOT regarding the reasoning level requirements of the jobs identified; and (3) that the ALJ's step five error is not harmless. As such, this case requires remand to determine whether significant jobs exist in the national economy that Mr. Greer can perform.

         A. The ALJ Provided Appropriate Explanations That Are Supported By Substantial Evidence For the Weight He Accorded to the Medical Sources Opinions

         The Administrative Record contains forty-eight treatment notes from ABQ Health Partners from June 11, 2014, through November 7, 2016, related to Mr. Greer's medical care. (Tr. 463-575, 710-16, 885-1001.) On June 11, 2014, Mr. Greer presented with complaints of hypertension, left elbow pain, depression, anxiety and alcohol abuse.[7] (Tr. 505-10.) Over the course of the next two years, Mr. Greer sought and received treatment for, inter alia, chest pain, hyperlipidemia, hearing loss, vision changes, low back pain, MRSA follow-up, basal cell carcinoma, skin rashes, gout, sleep apnea, and diverticulosis. (Tr. 463-575, 710-16, 885-1001.) Mr. Greer received most of his medical care at ABQ Health Partners where he was cared for by numerous healthcare professionals, with PA-C Matthew Fitch being his most frequent provider.[8] In December 2016, three of these providers, Patricia Carabajal, M.D., PA-C Fitch, and CNP Cheryl Brubaker, completed medical source statements on Mr. Greer's behalf. (Tr. 876-77, 1043-44, 1048-50.)

         1. Patricia Carabajal, M.D.

         Mr. Greer first saw Dr. Carabajal on June 8, 2015, to establish care. (Tr. 923.) Mr. Greer wanted to be tested for diabetes due to urinary frequency and had “paperwork that he [wanted] signed for a medical disability due to [] chronic MRSA.” (Tr. 923-24.) Mr. Greer reported that he continued to take iron for anemia and continued to see his psychologist for alcohol abuse.[9] (Tr. 924.) On physical exam, Dr. Carabajal noted, inter alia, that Mr. Greer appeared healthy and in no acute distress, that he had a “normal gait, no swelling of the lower extremities, no limping, AROM within normal limits, PROM within normal limits, no tenderness of the upper extremities and no tenderness of the lower extremities, ” and that Mr. Greer's “affect seemed normal, mood seemed normal and no decrease in concentrating ability.” (Tr. 925.) Dr. Carabajal noted she took a MRSA swab of a skin irritation under Mr. Greer's abdominal fold. (Id.) She assessed (1) MRSA carrier; (2) urinary frequency; (3) low back pain; (4) alcohol abuse; and (5) anemia. (Tr. 921.) She planned to follow up on the MRSA swab, [10] obtain a renal function panel, [11] refer Mr. Greer to physical therapy for low back pain, [12] and prescribe pantoprazole. (Tr. 921.) She instructed Mr. Greer to submit the disability paperwork to physical therapy and to his counselor for evaluation. (Id.)

         Mr. Greer saw Dr. Carabajal next on July 20, 2015. (Tr. 930-34.) Mr. Greer presented with complaints of itching skin and disability paperwork he wanted filled out.[13] (Tr. 932.) Mr. Greer also complained of ongoing pain in his back and elbows. (Id.) On physical exam, Dr. Carabajal noted, inter alia, that Mr. Greer appeared healthy and in no acute distress, that he had a “normal gait, no swelling of the lower extremities, no limping, no tenderness of the lumbar spine, AROM within normal limits, PROM within normal limits, no tenderness of the upper extremities and no tenderness of the lower extremities”; and that he was alert and oriented to person, place time, date, and situation. (Tr. 938.) Dr. Carabajal assessed low back pain, elbow pain, rash, anxiety and depression, and MRSA carrier. (Tr. 930.) She planned to refer Mr. Greer to Peak Motion for physical therapy evaluation and treatment for his low back and elbow pain; she noted that Mr. Greer's anxiety and depression were stable; and she advised Mr. Greer that the disability paperwork should be evaluated by physical therapy. (Id.)

         On August 5, 2015, Mr. Greer presented to Dr. Carabajal requesting Meloxicam for arthritis. (Tr. 937.) He reported aches in his right hand, knees, and back. (Id.) He also requested a referral for complaints of reduced hearing. (Id.) Dr. Carabajal's physical exam was unchanged from her July 20, 2015, exam. (Tr. 938.) She assessed Mr. Greer with reduced hearing and arthralgia. (Tr. 935.) She planned to refer Mr. Greer to Dr. Karl Horn to evaluate his hearing loss, and she prescribed Meloxicam for arthralgia. (Id.)

         On January 16, 2016, Mr. Greer saw Dr. Carabajal requesting a refill of his inhaler for wheezing. (Tr. 942.) He also complained of left foot pain, which Dr. Carabajal assessed as stable. (Tr. 943.) On physical exam, Dr. Carabajal noted, inter alia, that Mr. Greer had a “normal gait, no swelling of the lower extremities, no limping and no tenderness of the lower extremities”; and that he was alert and oriented to person, place, time, date and situation. (Tr. 944.)

         On March 2, 2016, Mr. Greer reported to Dr. Carabajal that he had slipped on some liquid at home and fallen, and that his left clavicle continued to be painful. (Tr. 951.) Mr. Greer also reported that his abdominal pain had improved, that his rectal bleeding had resolved, and that he recently celebrated one year of sobriety. (Id.) On physical exam, Dr. Carabajal noted that Mr. Greer had a normal gait, no swelling of the lower extremities, no limping, was alert, and oriented to person, place, time, date and situation. (Tr. 952-53.) Dr. Carabajal discussed safety issues, reviewed a recent abdominal ultrasound and indicated that Mr. Greer's abdominal pain was improved and stable, and congratulated Mr. Greer on his one year of sobriety. (Tr. 949.)

         On December 21, 2016, Patricia Carabajal, M.D., prepared medical source statements related to Mr. Greer's ability to perform work-related physical and mental activities. (Tr. 1048-50.) As to Mr. Greer's physical limitations, she assessed that Mr. Greer could only lift/carry up to ten (10) pounds occasionally due to back pain; that he could sit for 2 hours, stand for 2 hours, and walk for 2 or 3 hours in an eight-hour workday due to depression and lack of concentration; that he could frequently reach, handle, finger, and push/pull with both hands; that, if his feet were rested, he could occasionally operate foot controls; that he could occasionally climb stairs and ramps, balance, and kneel; and that he could never stoop or crouch. (Tr. 1048-49.) Dr. Carabajal explained that Mr. Greer's physical problems would last for twelve consecutive months because Mr. Greer had problems with concentration and fatigue. (Tr. 1049.) As to Mr. Greer's mental limitations, she noted that Mr. Greer suffered from a pain producing impairment, injury or sickness; that it was not severe; that he suffered sleep disturbance due to his pain or other causes; that he had fatigue as a result of his impairments; and that Mr. Greer had to rest or lie down at regular intervals because of his pain and/or fatigue. (Tr. 1050.) She assessed that he had slight limitations in his ability to (1) perform activities within a schedule; (2) work in coordination with/or proximity to others without being distracted by them; and (3) complete a normal workday and workweek without interruptions from pain or fatigue based symptoms and to perform at a consistent pace ...


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