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Tenorio v. Berryhill

United States District Court, D. New Mexico

December 14, 2018

EDWINA TENORIO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE

          THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 17)[2] filed June 12, 2017, in connection with Plaintiff's Motion to Reverse and Remand for Rehearing, With Supporting Memorandum, filed September 11, 2017. (Doc. 22.) Defendant filed a Response on November 9, 2017. (Doc. 24.) And Plaintiff filed a Reply on November 27, 2017. (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 that Plaintiff's motion is not well taken and shall be DENIED.

         I. Background and Procedural Record

         Plaintiff Edwina Tenorio (Ms. Tenorio) alleges that she became disabled on November 2, 2012, at the age of forty-five because of a math disability, speech impediment, hypothyroidism, heart palpitations, anxiety, hand-eye coordination problems, mental disability, and depression. (Tr. 223, 226.) Ms. Tenorio completed three years of college in 2000, and worked as a thrift store processor and big box retail sales associate. (Tr. 227, 228.) Ms. Tenorio's date of last insured was December 31, 2017. (Tr. 223.)

         On April 11, 2013, Ms. Tenorio protectively filed applications for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 etseq., and for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 201-04, 205-11.) Ms. Tenorio's applications were denied at the initial level (Tr. 82-92, 93, 94, 95-105, 138-142), and at reconsideration (Tr. 106-118, 119, 120, 121-133, 143-47). Upon Plaintiffs request, Administrative Law Judge (ALJ) Frederick Upshall, Jr., held a hearing on July 27, 2015. (Tr. 53-81, 149.) Ms. Tenorio appeared at the hearing with attorney representative lone E. Gutierrez.[3] (Tr. 53.) The ALJ took testimony from Ms. Tenorio (Tr. 58-72), and from impartial vocational expert (VE), Nicole King (Tr. 72-79.) On September 1, 2015, ALJ Upshall issued a written decision concluding that Ms. Tenorio was "not disabled" pursuant to the Act. (Tr. 32-47.) On January 10, 2017, the Appeals Council denied Ms. Tenorio's request for review, rendering ALJ Upshall's September 1, 2015, decision the final decision of Defendant the Commissioner of the Social Security Administration. (Tr. 1-8.) Ms. Tenorio timely filed a complaint on January 30, 2017, seeking judicial review of the Commissioner's final decision. (Doc. 1.)

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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) (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, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairments). If the claimant does not have an impairments) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairments) 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. Chafer, 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). This is called the claimant's residual functional capacity ("RFC"). Id. §§ 404.1545(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 her 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); 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. Castas v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         The Court reviews 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. 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). A decision is based on substantial evidence where it is supported by "relevant evidence [that] 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 if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). 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). Further, the 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). In undertaking its review, the Court may not "reweigh the evidence" or substitute its judgment for that of the agency. Langley, 373 F.3d at 1118.

         III. Analysis

         The ALJ made his decision that Ms. Tenorio was not disabled at step five of the sequential evaluation.[5] (Tr. 45-47.) The ALJ determined that Ms. Tenorio met the insured status requirements of the Social Security Act through December 31, 2017 (Tr. 37), and that she had not engaged in substantial gainful activity since November 1, 2012, the alleged onset date. (Id.) He found that Ms. Tenorio had severe impairments of anxiety disorder, learning disorder, speech impediment, cardiac palpitations, and obesity. (Id.) The ALJ determined, however, that Ms. Tenorio's impairments did not meet or equal in severity one the listings described in the governing regulations, 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 38-40.) Accordingly, the ALJ proceeded to step four and found that Ms. Tenorio had the residual functional capacity to perform a full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). The ALJ found that Ms. Tenorio

can stand/walk up to six hours in an eight-hour workday and sit up to six hours in an eight-hour workday. She is able to push/pull within the light exertional level weight limits (up to 20 pounds occasionally and 10 pounds frequently) and could occasionally climb ramps/stairs but never climb ladders/ropes/scaffolds. She should avoid concentrated exposure to environmental irritants such as fumes, odors, dusts, gases and poorly ventilated areas. She should avoid all use of moving machinery and all exposure to unprotected heights. She is limited to unskilled work performed in a work environment that does not include fast-paced production requirements, involving only simple work-related decisions, with few, if any, changes in the workplace. She can tolerate only occasional interaction with the public, incidental to the work performed, and only occasional interaction with coworkers. The claimant cannot perform math beyond the fifth grade level, and is limited to occupations that do not require fast processing and quick hand-eye coordination and detail. The claimant is limited to occupations that do not require frequent verbal communication.

(Tr. 41.) The ALJ concluded at step four that Ms. Tenorio may be able to perform her past relevant work as a garment sorter, but given uncertainties proceeded to step five. (Tr. 45.) At step five, the ALJ determined that based on her age, education, work experience, RFC, and the testimony of the VE, that there were jobs existing in significant numbers in the national economy that Ms. Tenorio could perform. (Tr. 45-47.)

         In support of her Motion, Ms. Tenorio first argues that the ALJ's RFC determination is contrary to the substantial evidence in the record and contrary to the governing law because (1) the Appeals Council failed to consider medical records that were dated after the ALJ's September 1, 2015, decision and improperly considered them out of time; (2) the ALJ's findings were inconsistent with NP Christine Lujan-Pino's medical source statements, and the ALJ failed to provide legitimate reasons for discounting NP Lujan-Pino's December 4, 2012, medical source statement; (3) the ALJ, having accorded great weight to the nonexamining State agency psychological consultant opinions, failed to account for all of the limitations they assessed; and (4) the ALJ relied on improper factors in evaluating statements regarding the intensity, persistence, and limiting effects of Ms. Tenorio's alleged disability. (Doc. 22 at 13-21.) Ms. Tenorio next argues that the ALJ's past work finding at step four contained legal error because (1) the RFC is not supported by substantial evidence; (2) the ALJ failed to make specific findings about Ms. Tenorio's past work as a garment sorter; and (3) the ALJ's "tentative finding" at step four renders it unsupported by substantial evidence. (Id. at 22-23.) Lastly, Ms. Tenorio argues that the ALJ's step-five finding was in error because (1) the ALJ's RFC is not supported by substantial evidence; and (2) the ALJ's RFC is inconsistent with jobs identified because they require a reasoning level of two which is inconsistent with Ms. Tenorio's moderate limitation in her ability to understand and remember detailed instructions. (Id. at 23-24.)

         The Commissioner argues that the ALJ's RFC determination is supported by substantial evidence because (1) the Appeals Council noted that the materials submitted after the ALJ's determination were made a part of the record and properly concluded that the information did not provide a basis for changing the decision; (2) the ALJ reasonably discounted NP Lujan-Pino's December 2012 medical source statement for reasons that are supported by substantial evidence; (3) the Appeals Council properly concluded that NP Lujan-Pino's November 2015 medical source statement did not change the ALJ's decision because it was about a later time; (4) the ALJ properly relied on the nonexamining State agency psychological consultant's narrative conclusions in assessing Ms. Tenorio's mental RFC; and (5) the ALJ cited to regulatory criteria that was supported by record evidence to determine that Ms. Tenorio's statements about her alleged disabilities were inconsistent. (Doc. 24 at 5-18.) The Commissioner also contends that the ALJ's step four findings are supported by substantial evidence because the ALJ classified Ms. Tenorio's past work using both vocational expert testimony and the DOT. (Id. at 18-19.) The Commissioner asserts, however, that any error at step four is harmless because the ALJ made findings at step five that are supported by substantial evidence. (Id.) Finally, the Commissioner contends that the ALJ did not err in his step five findings because (1) the RFC is supported by substantial evidence; and (2) unskilled work does not require the ability to understand, remember or carry out detailed instructions, and Tenth Circuit case law supports that a limitation to simple work is not inconsistent with reasoning level two jobs. (Id. at 19-21.)

         As fully discussed below, the Court finds that there is no reversible error.

         A. The ALJ's RFC Is Supported by Substantial Evidence

         In assessing a claimant's RFC at step four, the ALJ must consider the combined effect of all of the claimant's medically determinable impairments, and review all of the evidence in the record. Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. §§ 404.1545(a)(2) and (3), 416.945(a)(2) and (3). Most importantly, the ALJ's "RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence." Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ fails to provide a narrative discussion describing how the evidence supports each conclusion, citing to specific medical facts and nonmedical evidence, the court will conclude that his RFC conclusions are not supported by substantial evidence. See Southard v. Barnhart, 72 Fed.Appx. 781, 784-85 (10th Cir. 2003). The ALJ's decision must be sufficiently articulated so that it is capable of meaningful review. See Spicer v. Barnhart, 64 Fed.Appx. 173, 177-78 (10th Cir. 2003).

         The Court will address each of Ms. Tenorio's arguments in turn.

         1. Consideration of Additional Evidence

         After the ALJ's September 1, 2015, determination, Ms. Tenorio submitted additional evidence to the Appeals Council for its review and consideration, which the Appeals Council made part of the record.[6] (Tr. 6-7.) In its decision denying Ms. Tenorio's request for review, the Appeals Council specifically stated that they

looked at a letter describing future treatment plans dated November 16, 2015 (3 pages), an attendance agreement with Presbyterian Outpatient Rehabilitation Services dated November 13, 2015 (10 pages), and an undated information package on autoimmune diseases received October 15, 2015 (7 pages). The Administrative Law Judge decided your case through September 1, 2015. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before September 1, 2015.

(Tr. 2.) Ms. Tenorio argues that the Appeals Council committed legal error when it determined, without more, that the November 2015 medical evidence, specifically the November 10, 2015, medical source statements completed by CNP Christine Lujan-Pino, was not related to the relevant period of time. (Doc. 22 at 13-14.) She contends that medical source statements qualify as new, material and temporally relevant because they relate to Ms. Tenorio's history of osteoarthritis and her worsening mental impairments. (Id. at 14, Doc. 25 at 1-5.) The Commissioner asserts that the Appeals Council properly noted it considered the new evidence and was not required to provide an analysis to explain its reasons for declining review.[7] (Doc. 24 at 6-7.)

         The Appeals Council will grant review of a case if, inter alia, "the claimant submits additional evidence that is new, material, and related to the period on or before the date of the ALJ decision." 20 C.F.R. §§ 404.970(b) and 416.1470(b) see also Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (holding that under 20 C.F.R. §§ 404.970(b) and 416.1470(b) the Appeals Council must consider evidence submitted with a request for review if it is new, material, and related to the period on or before the date of the ALJ's decision).

         This means the evidence is:

1. Not part of the claim(s) record as of the date of the ALJ decision;
2. Relevant, i.e., involves or is directly related to issues adjudicated by the ALJ; and
3. Relates to the period on or before the date of the ALJ, meaning it is (1) dated before or on the date of the ALJ decision, or (2) post-dates the ALJ decision but is reasonably ...

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