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Vargas v. Berryhill

United States District Court, D. New Mexico

January 14, 2019

JENNIFER MARIE VARGAS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner for the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA CHIEF JUDGE

         THIS MATTER is before the Court on Plaintiff Jennifer Vargas' Motion to Reverse and Remand for a Rehearing, with Supporting Memorandum (the “Motion”), (Doc. 22), filed September 6, 2018; Defendant Commissioner Nancy A. Berryhill's Response to Plaintiff's Motion to Reverse and Remand the Administrative Decision (the “Response”), (Doc. 24), filed October 18, 2018; and Ms. Vargas' Reply to Defendant's Response to Motion to Reverse and Remand (the “Reply”), (Doc. 25), filed November 19, 2018.

         Ms. Vargas filed applications for disability insurance benefits and supplemental security income on February 4, 2015. (Administrative Record “AR” 194, 196). In both of her applications, Ms. Vargas alleged disability beginning November 4, 2014. (AR 194, 196). Ms. Vargas claimed she was limited in her ability to work due to: post-traumatic stress disorder (“PTSD”); anxiety; depression; and chronic back pain. (AR 224).

         Ms. Vargas' applications were denied initially on May 6, 2015 and upon reconsideration on September 16, 2015. (AR 133, 140). At Ms. Vargas' request, (AR 145), a hearing was held on December 19, 2016 before Administrative Law Judge (“ALJ”) Michael Leppala. (AR 33). Ms. Vargas and Kathleen Mundy, an impartial vocational expert (“VE”), testified at the hearing and Ms. Vargas was represented by attorney Feliz Marisol Martone. Id.

         On April 3, 2017 the ALJ issued his decision, finding Ms. Vargas not disabled at any time between her protective filing date, November 4, 2014, through the date of his decision. (AR 25). Ms. Vargas requested review by the Appeals Council, (AR 191-93), which was denied, (AR 1-4), making the ALJ's opinion the Commissioner's final decision for purposes of this appeal.

         Ms. Vargas, who is now represented by attorney Francesca MacDowell, argues in her Motion that the ALJ: (1) incorrectly determined she can perform work at a “medium” exertion level despite her complaints of chronic back pain and vertigo, (Doc. 22 at 3-9, 20-22); (2) erroneously assessed Ms. Vargas' non-exertional limitations because he did not properly consider the evidence of her excessive crying and anxiety, id. at 10-14, 18-20; (3) did not include, or explain the exclusion of, all of the limitations assessed by State Agency physicians P. Walls, M.D. and J. McWilliams, Ph.D., id. at 14-17; and (4) did not present the VE with a correct residual functional capacity (“RFC”) assessment, rendering reliance on her testimony improper, id. at 22-24. The Court has reviewed the Motion, the Response, the Reply, and the relevant law. Additionally, the Court has meticulously reviewed the administrative record. Because the ALJ did not commit reversible legal error as alleged by Ms. Vargas, the Court orders that Ms. Vargas' Motion be DENIED and the case be DISMISSED WITH PREJUDICE.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). The Commissioner's “failure to apply the correct legal standards, or to show . . . that she has done so, are also grounds for reversal.” Winfrey v. Chater, 92 F.3d 1017, 1019 (10th Cir. 1996) (citing Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994)). A court should meticulously review the entire record but should neither re-weigh the evidence nor substitute its judgment for the Commissioner's. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. A court's review is limited to the Commissioner's final decision, 42 U.S.C. § 405(g), which is generally the ALJ's decision, rather than the Appeals Council's denial of review. O'Dell v. Shalala, 44 F.3d 855, 858 (10th Cir. 1994).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214; Doyal, 331 F.3d at 760. An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. While the Court may not re-weigh the evidence or try the issues de novo, its examination of the record must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ]'s findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

          For purposes of supplemental security income and disability insurance benefits, a claimant establishes a disability when 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) (2015), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). In order to determine whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process (“SEP”). Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.

         At the first four steps of the SEP, the claimant bears the burden of showing: (1) he is not engaged in “substantial gainful activity;” (2) he 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 either (3) his impairment(s) meet or equal one of the “listings”[1] of presumptively disabling impairments; or (4) he is unable to perform his “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). If the ALJ determines the claimant cannot engage in his past relevant work, the ALJ will proceed to step five of the evaluation process. At step five, the Commissioner bears the burden of showing that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. Grogan, 399 F.3d at 1261.

         III. Background

         Ms. Vargas claimed she was limited in her ability to work due to: PTSD; anxiety; depression; and chronic back pain. (AR 224). At step one, the ALJ determined that Ms. Vargas had not engaged in substantial gainful activity since November 4, 2014, the alleged disability onset date. (AR 13). At step two, the ALJ found that Ms. Vargas has the following severe impairments: spine disorders; anxiety disorders; personality disorders; and affective disorders. (AR 13-14). At step three, the ALJ determined that none of Ms. Vargas' impairments, solely or in combination, equaled one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926. (AR 14-16).

         At step four, the ALJ found that Ms. Vargas has the RFC to perform a limited range of medium work with the following limitations: she can lift and/or carry 50 pounds occasionally and 25 pounds frequently; she can sit for six hours in an eight-hour workday, with normal breaks; she can stand and/or walk for six hours in an eight-hour workday; she is limited to tasks with two- to three-step instructions; she can have occasional and intermittent contact with co-workers and supervisors; and she is limited to seldom contact with the general public. (AR 16).

         In formulating Ms. Vargas' RFC, the ALJ stated that he considered Ms. Vargas' symptoms and the extent to which those symptoms can reasonably be accepted as consistent with objective medical and other evidence, as required by 20 C.F.R. §§ 404.1529, 416.929 and Social Security Ruling (“SSR”) 96-4p. Id. The ALJ also stated that he considered opinion evidence consistent with the requirements of 20 C.F.R. §§ 404.1527, 416.927 and SSRs 96-2p, 96-5p, 96-6p, 06-3p. (AR 17). The ALJ concluded that some of Ms. Vargas' impairments could be expected to cause her alleged symptoms, but he found that the intensity, persistence, and limiting effects that Ms. Vargas described were not entirely consistent with the evidence in the record. Id.

         In evaluating the medical evidence in the record, the ALJ stated that he gave significant weight to the opinions of State Agency reviewing physicians Dr. Walls and Dr. McWilliams. (AR 20). The ALJ explained that the State Agency physicians were familiar with the Social Security disability standards and their opinions were generally consistent with the other objective medical evidence in the record, including Ms. Vargas' mental status examination. Id. The ALJ similarly afforded the opinion of State Agency medical consultant R. Draper, M.D. “great weight, ” opining that his conclusions are consistent with the other medical evidence in the record and Ms. Vargas' positive response to medication. (AR 17-18). Conversely, the ALJ discredited the medical opinion of State Agency medical consultant A. Mamaril, M.D., affording her opinion “only some weight” because she did not have access to the most recent medical evidence. (AR 17).

         None of Ms. Vargas' treating physicians proffered a medical opinion regarding her mental or physical impairments as they relate to her limitations for purposes of determining disability under the Social Security Act. However, the ALJ discussed the treatment notes and findings of several medical professionals who evaluated Ms. Vargas, including Rachel Casias, P.T.A., Jericho Ayson, P.T., Christopher Swain Loucks, M.D., Jeffery Hebert, M.D., Melissa Selinas, PA-C, and Jessica Johnston, PA-C. (AR 17-19).

         After examining Ms. Vargas' medical history and her testimony at the hearing, the ALJ found that Ms. Vargas is unable to perform any of her past relevant work and proceeded to step five of the SEP. (AR 22-23). At this step, the ALJ noted that Ms. Vargas was 48 years old on the alleged disability onset date, and therefore was classified as a “younger individual” in accordance with the Regulations. (AR 22). However, Ms. Vargas subsequently changed age categories and is now correctly classified as an individual “closely approaching advanced age.” (AR 23). The ALJ also determined that Ms. Vargas has at least a high school education and is able to communicate in English. Id.

         Further, the ALJ explained that if Ms. Vargas had the RFC to perform the full range of medium work, a finding of not disabled would be directed by Medical-Vocational Rule 203.29. Id. However, the ALJ found that Ms. Vargas' limitations impeded her ability to perform the full range of medium work. Id. The ALJ therefore relied on the testimony of the VE to determine applicable jobs Ms. Vargas could perform in the national economy. Id. The ALJ noted that the VE testified at the hearing that an individual with Ms. Vargas' same age, education, work experience, and RFC could perform the jobs of dishwasher, laundry worker, and stocker. Id. After finding the VE's testimony consistent with the Dictionary of Occupational Titles, the ALJ adopted the testimony of the VE and concluded that, because Ms. Vargas is capable of performing work existing in significant numbers in the national economy, she is not disabled pursuant to 20 C.F.R. §§ 404.1520(g) and 416.920(g). (AR 24).

         IV. Analysis

         Ms. Vargas presents four arguments in her Motion before the Court. First, Ms. Vargas alleges the ALJ's decision is not supported by substantial evidence because the ALJ did not properly consider evidence of her physical impairments, specifically her chronic back pain and vertigo. (Doc. 22 at 3-9; 20-22). Similarly, Ms. Vargas next claims the ALJ's decision is not supported by substantial evidence because he did not properly consider evidence of her mental and emotional impairments, specifically her excessive crying and anxiety. Id. at 10-14, 18-20. In her third argument, Ms. Vargas contends the ALJ failed to include, or explain the exclusion of, several of the limitations assessed by State Agency physicians Dr. Walls and Dr. McWilliams. Id. at 14-17. Finally, Ms. Vargas argues the ALJ's reliance on the VE's testimony was improper because the testimony was based on an incorrect RFC assessment. Id. at 22-24.

         In response, the Commissioner claims the ALJ's RFC assessment properly accounts for Ms. Vargas' complaints of back pain, vertigo, anxiety, and crying spells. (Doc. 24 at 8). In addition, the Commissioner contends the ALJ's findings were consistent with Dr. Walls' opinions, and therefore his failure to specifically address all of Dr. Walls' report was harmless error. Id. at 13. Finally, the Commissioner concludes, there is no legally reversible error illustrated by Ms. Vargas' step-five argument because the ALJ's decision is supported by substantial evidence. Id. at 17.

         A. The ALJ's Analysis of Ms. Vargas' Physical Limitations

         Ms. Vargas first contends “[t]here is not substantial evidence to support the ALJ's finding regarding the physical requirements of medium level work.” (Doc. 22 at 9). Specifically, Ms. Vargas argues the ALJ incorrectly relied on the medical opinion of Dr. Draper because evidence dated after his report reveals that she was more limited than Dr. Draper initially opined. (Doc. 22 at 4). In response, the Commissioner posits that the additional evidence does not undermine Dr. Draper's findings, but “rather it merely shows that [Ms. Vargas] continued to complain of back pain.” (Doc. 24 at 8). In addition, the Commissioner highlights evidence supporting the ALJ's decision and notes the conflicting reports found in the record. (Doc. 24 at 9-10).

         1. The ALJ's Reliance on Dr. Draper's Report

         First, Ms. Vargas argues the ALJ's RFC assessment regarding her physical limitations is not supported by substantial evidence because the ALJ relied on the outdated medical opinion of Dr. Draper. (Doc. 22 at 9). An ALJ's decision is based on substantial evidence if “a reasonable mind might accept [it] as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (citation omitted). Upon review, the court cannot “reweigh the evidence nor substitute its judgment for that of the agency.” Bernal v. Brown, 851 F.2d 297, 299 (10th Cir. 1988) (citation omitted). Indeed, the court should not “displace the agency'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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Here, the ALJ gave “great weight” to the medical evaluation of Dr. Draper, finding that his report was consistent with Ms. Vargas' ability to perform medium level work. (AR 17-18). Further, the ALJ explained, Dr. Draper is familiar with Social Security disability standards, he conducted a “longitudinal review” of the record, and his conclusions were consistent with the other medical evidence presented. Id. The ALJ noted that Dr. ...


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