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Drake v. Berryhill

United States District Court, D. New Mexico

February 6, 2019

CAROL ANN DRAKE, 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 and Remand for Rehearing with Supporting Memorandum (Doc. 17), filed on May 21, 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. 4, 7, 8. 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 July 29, 2013, Carol Ann Drake (“Plaintiff”) filed an application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, alleging disability beginning June 15, 2013. Administrative Record[1] (“AR”) at 221. Plaintiff's date last insured was December 31, 2017. AR at 65, 116, 134. Her claim was denied both initially (AR at 115, 130) and on reconsideration (AR at 132, 149). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of her application. AR at 164-65.

         ALJ Doug Gabbard II held a de novo hearing in August 2016, at which Plaintiff appeared and was represented by non-attorney Micki Kindley. AR at 82-114. Plaintiff testified, as did a vocational expert. See AR at 82-114. ALJ Gabbard issued an unfavorable decision on November 3, 2016. AR at 63-77. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 217), which the Council denied on September 27, 2017 (AR at 1). 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. § 404.1505(a). The Commissioner uses a sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(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 § 404.1520(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.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2 (D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R. § 404.1545(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” Plaintiff 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. § 404.1520(a)(4)(v).

         Here, at Step One of the process, [2] the ALJ found that Plaintiff had “not engaged in substantial gainful activity since June 15, 2013, the alleged onset date.” AR at 65 (citing 20 C.F.R. § 404.1571). At Step Two, the ALJ concluded that Plaintiff had the following severe impairments: fibromyalgia, asthma, epilepsy, affective disorder, and anxiety disorder. AR at 65 (citing 20 C.F.R. § 404.1520). Additionally, he determined that Plaintiff had numerous non-severe impairments, including “vision loss; vertigo; recurrent pneumonia; chronic pain; pituitary neuroma; migraines; alleged numbness of the arm, hands, feet and leg; chest pain; hyperlipidemia; high cholesterol; possible chronic Lyme disease; diverticulosis; possible irritable bowel syndrome and or constipation; insomnia; cannabis use; and tobacco abuse.” AR at 66. The ALJ concluded that this second set of conditions was either “amenable to proper control by adherence to recommended medical management and medication compliance” or that “there [was] insufficient evidence that these conditions met the durational requirements . . . or . . . create[d] any specific functional limitations regarding [Plaintiff's] ability to perform work related activities.” AR at 66. At Step Three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 66 (citing 20 C.F.R. §§ 404.1520(d)), 404.1525, 404.1526).

         At Step Four, the ALJ determined that Plaintiff had the RFC to perform light work with some non-exertional limitations, including the following:

The claimant is . . . limited to unskilled work (work, which needs little or no judgment to do simple duties that can be learned on the job in a short period of time). Her supervision must be simple, direct, concrete and non-critical; interpersonal contact with supervisors and coworkers must be incidental to the work performed, e.g., assembly work. The claimant cannot work at fast-paced production line speeds. She must have normal regular work breaks with only occasional workplace changes and she should have only occasional contact with the general public.

AR at 69. Given this RFC, the ALJ found that Plaintiff could not perform her past relevant work. AR at 75-76. Nevertheless, at Step Five, he concluded, based upon testimony of the vocational expert, that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, to include an Inspector/Hand Packager (DOT #559.687-074) and a Marker (DOT #209.587-034). AR at 76-77. As such, the ALJ ultimately determined that Plaintiff was not disabled from June 15, 2013, through the date of his decision. AR at 77 (citing 20 C.F.R. § 404.1520(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 (10th Cir. 2012) (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 identifies three reasons for reversal of the ALJ's unfavorable disability determination. First, she contends that the ALJ's RFC finding is incomplete and unsupported by substantial evidence, as she suggests that the ALJ failed to properly analyze the consulting opinions. Doc. 17 at 1. Second, she maintains that an error in formulating the RFC tainted the finding that Plaintiff could work at Step Five. Id. At 1. More particularly, according to Plaintiff, the ALJ's reliance on the testimony of the vocational expert was contrary to law, because the ALJ failed to ask the vocational expert to identify inconsistencies between her testimony and the information in the Dictionary of Occupational Titles (“DOT”). Id. Relatedly, Plaintiff contends that the ALJ failed to clarify vocational testimony that appeared inconsistent with the DOT. Id. Finally, Plaintiff argues that it was legal error for the Appeals Council to refuse to consider evidence dated before the ALJ decision. Id. at 2.

         A. Plaintiff fails to show reversible error in the ALJ's determination of her exertional limitations.

         ALJ Gabbard determined that Plaintiff was able to perform light work with certain exertional limitations.[3] In so doing, he relied upon the opinions of non-examining state agency physicians rendered in February and September 2014. See AR at 75. Plaintiff maintains that the ALJ's limitation to light work was in error, both because other agency findings limited her to sedentary work and because treatment records suggest that she could not, in fact, perform light work. Doc. 17 at 6-7. According to Plaintiff, this determination that she could perform light work was a critical one, because a limitation to sedentary work would have rendered her disabled as a matter of law. Id. at 5-6 (citing 20 C.F.R., pt. 404, subpt. P, app. 2, Table 1).

         Notably, it was not the state agency physician who opined that Plaintiff could perform only sedentary work; rather, it was the disability adjudicator who determined, on initial review, that she was capable of only sedentary work. AR at 130-31. The state agency physician, in contrast, opined on initial review that she was capable of work commensurate with light exertion. AR at 124-26. And, on reconsideration, both the state agency physician and the disability adjudicator determined that she could perform light work. AR at 148. Plaintiff appealed the agency determination, and the ALJ considered the application de novo. 20 C.F.R. § 404.929. The ALJ, who was not bound by the initial disability adjudicator's determination, found that Plaintiff could perform restricted light work. AR at 68-69. It is the ALJ's decision, not the agency's initial decision, which is pertinent on appeal. In other words, the disability adjudicator's prior finding that Plaintiff could perform only sedentary work does not render erroneous the ALJ's contrary finding.

         Plaintiff next submits that the ALJ's determination that she could perform light work is contrary to her treatment records. She notes, for example, that in December 2015, PA M. Gallagher-Gonzales provided her with a handicap parking placard on the basis that she was unable to walk without a cane or assistance more than 100 feet without rest and because a permanent neurological condition prevented her from climbing more than 10 stair steps. Doc. 17 at 6 (citing AR at 448). Additionally, she submits that other medical records throughout 2014 and 2015 suggest that her fibromyalgia symptoms, including shooting pains, numbness in her extremities, neck pain, fatigue, and gastrointestinal problems, were worsening. Id. (citing AR 464, 468, 470, 471, 473, 482). Moreover, she emphasizes that clinical findings showed a decreased range of motion in her lumbar and cervical spine as well as tenderness of the cervical, thoracic, and lumbar spine. Id. (citing AR 473, 483).

         The ALJ did not neglect to address the findings of PA Gallagher-Gonzales. Instead, he expressly determined that any allegation that Plaintiff was unable to walk in December 2015 was simply inconsistent with the record. AR at 74. He accurately noted, for instance, that Manual A. Gurule, M.D., one of Plaintiff's treating physicians, reported just two months earlier that Plaintiff's neurological examination was normal, as was her gait, coordination, and motor strength, and that her extremities showed no signs of neuropathy, radiculopathy, or plexopathy. AR at 73-74. The ALJ assigned PA Gallagher-Gonzales' findings little weight, because of their inconsistency with other records, such as those from Dr. Gurule. AR at 74. Accordingly, the ALJ offered specific and legitimate reasons for rejecting PA Gallagher-Gonzales' findings. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (reasoning that when an ALJ rejects an opinion, he is required to “give specific, legitimate reasons for doing so”) (internal quotes omitted).

         Nor did the ALJ ignore Plaintiff's fibromyalgia symptoms. He was constrained, however, by Social Security Ruling (“SSR”) 12-2p, which addresses the treatment of claimants with fibromyalgia. See 2012 WL 3104869 (July 25, 2012). Pursuant to SSR 12-2p, an adjudicator must consider whether “there is sufficient objective evidence to support a finding that [fibromyalgia] so limits [her] functional abilities that it precludes . . . her from performing any substantial gainful activity.” Id. at *2. SSR 12-2p requires an ALJ to evaluate the intensity and persistence of the claimant's fibromyalgia-related symptoms and to determine the extent to which they limit her ability to work. Id. at *5. If objective medical evidence does not substantiate a claimant's statements regarding intensity, persistence, and limitations, the ALJ considers all the evidence in the record, including the claimant's daily activities, her medication or other treatment, the nature and frequency of her attempts to obtain medical treatment, and any relevant statements by others. Id. The Ruling emphasizes that the claimant's “longitudinal record” should be considered when possible, “because the symptoms of [fibromyalgia] can wax and wane.” Id. at *6.

         The ALJ considered the evidence of record related to Plaintiff's fibromyalgia in reaching his decision, discussing Plaintiff's relevant treatment notes at length. He acknowledged that Plaintiff “sought and received consistent treatment since alleging disability” and that her “treatment history [was] consistent with her allegations of significant pain.” AR at 70. Nevertheless, he concluded that the record lacked clinical signs or medical findings that would establish a pattern of pain so severe as to support a finding of disability. AR at 70. He emphasized that diagnostic images of Plaintiff's cervical spine, lumbar spine, [4] brain, and hip, for instance, were largely unremarkable. AR at 70. Further, he determined that the electromyography and nerve conduction studies revealed no neurologic or motor dysfunction in Plaintiff's extremities, despite her complaints of numbness. AR at 70. Finally, he noted that Plaintiff's physical examinations were normal, without signs of gait disturbance, muscle weakness, or neurological deficits. AR at 70. Ultimately, considering the medical records in the light most favorable to ...


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