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Kiro v. Berryhill

United States District Court, D. New Mexico

March 25, 2019

TERENCE A. KIRO,, 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. 12) filed April 18, 2018, in support of Plaintiff Terence A. Kiro'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 his claim for Title II disability insurance benefits. On June 20, 2018, Plaintiff filed his Motion to Reverse and Remand for Rehearing With Supporting Memorandum (“Motion”). Doc. 16. The Commissioner filed a Response in opposition on August 20, 2018 (Doc. 18), and Plaintiff filed a Reply on September 4, 2018 (Doc. 19). 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 the Motion is not well taken and is DENIED.

         I. Background and Procedural Record

         Claimant Terence A. Kiro (“Mr. Kiro”) alleges that he became disabled on September 29, 2006, [2] at the age of forty-five because of sciatica, right hip pain, degenerative disc disease (lumbar), open reduction internal fixation (ORIF) lumbar, and memory loss. Tr. 42, 211, 214.[3]Mr. Kiro completed the twelfth grade in 1979 and has worked as a journeyman/painter for small business contractors and painting companies. Tr. 215, 243-54.

         On September 29, 2014, Mr. Kiro filed an application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. Tr. 189-90. Mr. Kiro's application was initially denied on May 12, 2015. Tr. 73-80, 81, 91-94. It was denied again at reconsideration on September 15, 2015. Tr. 82-89, 90, 100-04. Mr. Kiro requested a hearing before an Administrative Law Judge (“ALJ”), and ALJ Raul C. Pardo conducted a hearing on July 11, 2017. Tr. 39-71. Mr. Kiro appeared in person at the hearing with attorney representative William S. Rode. Id. The ALJ took testimony from Mr. Kiro and an impartial vocational expert (“VE”), Cornelius Ford. Id. On August 14, 2017, ALJ Pardo issued an unfavorable decision. Tr. 19-33.

         On December 3, 2017, the Appeals Council issued its decision denying Mr. Kiro's request for review and upholding the ALJ's final decision. Tr. 1-4. On January 29, 2018, Mr. Kiro 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.”[4] 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 determined that Mr. Kiro was not disabled from his alleged onset date through his date last insured. Tr. 19-33. In making this determination, the ALJ found at step one that Mr. Kiro met the insured status requirements through September 30, 2006, and that he had not engaged in substantial gainful activity since his alleged onset date. Tr. 24. At step two, the ALJ found that through the date last insured, Mr. Kiro had severe impairments of degenerative disc disease, status-post lumbar fusion, shoulder pain, and bilateral knee pain.[5] Id. The ALJ, however, determined that Mr. Kiro's impairments did not meet or equal in severity one of the listings described in Appendix 1 of the regulations. Tr. 25. As a result, the ALJ proceeded to step four and found that after careful consideration of the entire record, Mr. Kiro had the residual functional capacity through the date last insured to perform light work as defined in 20 CFR 404.1567(b). Tr. 25. The ALJ stated that Mr. Kiro

could lift/carry twenty pounds occasionally and ten pounds frequently; sit six of eight hours; stand six of eight hours; and walk six of eight hours. He could push and pull twenty pounds occasionally and ten pounds frequently. The claimant could frequently reach to the left and right; and frequently handle items with the left hand and right hand. He could frequently climb ramps and stairs, balance and stoop. The claimant could occasionally climb ladders, ropes, or scaffolds, and kneel. The claimant's time off task could be accommodated by normal breaks.

Tr. 28. The ALJ concluded at step four that Mr. Kiro was not able to perform any past relevant work. Tr. 30. At step five, the ALJ determined that based on Mr. Kiro'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. Kiro could have performed through his date last insured and was, therefore, not disabled. Tr. 31-33.

         Mr. Kiro asserts two arguments in support of his Motion as follows: (1) the Appeals Council failed to properly consider the opinion of Dr. John Vigil, M.D.; and (2) ALJ Pardo failed to apply the correct legal standards when evaluating the opinion of treating physician Dr. Phillip Sandoval. Doc. 16 at 9-20. For the reasons discussed below, the Court finds no reversible error.

         A. Consideration of Additional Evidence

         On September 18, 2017, John R. Vigil, M.D., CIME, performed an independent medical and functional evaluation of Mr. Kiro based on a referral from Attorney Scott Rode. Tr. 10-15. Mr. Kiro reported that his primary disabling complaint was chronic back pain. Tr. 10. Dr. Vigil indicated he reviewed Mr. Kiro's medical records[6] and took Mr. Kiro's relevant histories; i.e., history of present illness, [7] past medical history, past surgical history, family medical history, and social/occupational history. Tr. 10-12. On physical exam, Dr. Vigil noted, inter alia, that Mr. Kiro appeared to be in obvious discomfort, had a slow and antalgic gait, was unable to stay up on his toes or heels, was unable to squat or hop, was able to get up on the exam table on his own slowly and with some difficulty, was able to move from the supine to the prone position on the examination table with moderate pain and some difficulty, had a positive straight leg lift on the right in both the supine and sitting positions, had moderate lumbar tenderness on palpation, had decreased range of motion of the lumbar spine, had some bilateral paraspinous muscle tenderness and spasm, and that any movement was associated with increased pain as evidenced by wincing. Tr. 14. Dr. Vigil assessed (1) chronic low back pain with radiculitis; (2) status post lumbar fusion, failed back syndrome; (3) degenerative disc disease of the lumbar spine with spondylosis and facet arthropathy; and (4) status post traumatic brain injury. Id. Dr. Vigil concluded that

. . . it is my opinion that within a reasonable medical probability that this patient has severe functional limitations and is severely limited in both vocational and avocational activities secondary to his chronic pain syndrome.
It is my opinion that Mr. Kiro's disabilities, including his chronic pain preclude him performing even sedentary work on a full-time and sustained basis from at least 2007 more likely from 2004 when he had his lumbar fusion. . . .

Tr. 14.

         Dr. Vigil also completed a Medical Assessment of Ability To Do Work-Related Activities (Physical) and a Medical Assessment of Ability To Do Work-Related Activities (Non-Physical) on Mr. Kiro's behalf. Tr. 16-18. The instructions directed Dr. Vigil to consider Mr. Kiro's “medical history and the chronicity of findings as from 2006 to current examination.” Tr. 11-12. In doing so, Dr. Vigil assessed that Mr. Kiro could never lift/carry up to 10 pounds; could sit, stand or walk for less than 30 minutes; could frequently reach, handle and finger; could occasionally use his feet; and could never climb, balance, stoop, kneel or crouch. Tr. 16-17. Dr. Vigil further assessed that Mr. Kiro suffered from a severe pain producing impairment, injury or sickness that caused sleep disturbances and fatigue, and required Mr. Kiro to rest or lie down at regular intervals. Tr. 18. Finally, Dr. Vigil assessed that Mr. Kora had moderate limitations in his ability to (1) maintain attention and concentration for extended periods (i.e., 2-hour segments); and (2) maintain regular attendance and be punctual within customary tolerance; and had marked limitations in his ability to (1) perform activities within a schedule; (2) maintain physical effort for long periods without a need to decrease activity or pace, or to rest intermittently; and (3) complete a normal workday and workweek without interruptions from pain or fatigue based symptoms and to perform at a consistent pace without unreasonable number and length of rest periods. Id. Dr. Vigil explained that Mr. Kiro had severe chronic back pain due to degenerative disc disease, spondylosis, and failed back syndrome. Id.

         Mr. Kiro argues that the Appeals Council improperly determined that the additional submitted evidence would not show a reasonable probability that it would change the outcome of the decision. Doc. 16 at 9-14. Mr. Kiro further argues that the additional evidence is new, material, and chronologically pertinent and, therefore, should have been considered. Id. The Commissioner contends that the Appeals Council's denial of claimant's request for review is not judicially reviewable because the Appeals Council considered the evidence and determined that it did not provide a basis for changing the ALJ's decision. Doc. 18 at 13. The Commissioner further contends that, ...


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