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Waterfield v. Berryhill

United States District Court, D. New Mexico

April 8, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.


         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for Rehearing, with Supporting Memorandum (Doc. 15) filed on November 20, 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. 3, 5, 6. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is well-taken and will be granted in part.

         I. Procedural History

         On September 19, 2014, Ms. Pauline Waterfield (Plaintiff) protectively filed applications with the Social Security Administration for a period of disability and disability insurance benefits under Title II of the Social Security Act (SSA), and for Supplemental Security Income under Title XVI of the SSA. Administrative Record[1] (AR) at 218-25. Plaintiff alleged a disability onset date of September 3, 2014. AR at 218, 224. Disability Determination Services (DDS) determined that Plaintiff was not disabled both initially (AR at 78-79) and on reconsideration (AR at 128-29). Plaintiff requested a hearing with an Administrative Law Judge (ALJ) on the merits of her applications. AR at 146-48.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 32-77. ALJ Lillian Richter issued an unfavorable decision on June 1, 2017. AR at 7-31. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 214-15), which the Council denied on April 2, 2018 (AR at 1-6). 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 must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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), 416.920(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), 416.920(a)(4)(v).

         At Step One of the process, [2] ALJ Richter found that Plaintiff “has not engaged in substantial gainful activity since September 3, 2014, the alleged onset date.” AR at 12 (citing 20 C.F.R. §§ 404.1571-1576, 416.971-976). At Step Two, the ALJ concluded that Plaintiff “has the following severe impairments: degenerative disc disease of the lumbar spine with spondylosis, radiculitis, degenerative disc disease of the thoracic spine, and depression.” AR at 12 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The ALJ noted that Plaintiff “has been diagnosed with [several] medically determinable impairments, which [the ALJ] found to be non-severe: constipation, gastroesophageal reflux disorder, H. pylori infection, and a left lower extremity soft tissue injury.” AR at 13.

         At Step Three, the ALJ found that Plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 13 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). At Step Four, the ALJ found that while Plaintiff's “medically determinable impairments could reasonably be expected to produce the . . . alleged symptoms[, ]” the ALJ did not find Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms . . . entirely consistent with the medical evidence and other evidence in the record . . . .” AR at 17. The ALJ considered the evidence of record and found that Plaintiff

has the residual functional capacity to perform a limited range of sedentary work . . . . She can lift, carry, push, and/or pull 10 pounds occasionally and 5 pounds frequently; stand and/or walk 2 hours total and sit 6 hours total during an 8 hour day; occasionally climb ramps and stairs; occasionally stoop, kneel, crouch and crawl; and never climb ladders, ropes or scaffolds. [She] can never be exposed to unprotected heights. [She] cannot operate foot controls with the left lower extremity. [She] should avoid exposure to extreme cold, vibration or hazardous machinery. [She] is limited to simple, routine, and repetitive work and can have occasional interaction with members of the public. [She] is limited to a workplace with few changes in the routine work setting.

AR at 16. ALJ Richter found that Plaintiff “is unable to perform any past relevant work.” AR at 23 (citing 20 C.F.R. §§ 404.1565, 416.965). Instead, Plaintiff may perform the positions of table worker, inspector, and circuit board inspector. AR at 24. The ALJ ultimately determined that Plaintiff “has not been under a disability, as defined in the Social Security Act, from September 3, 2014, through the date of [the ALJ's] decision.” AR at 24 (citing 20 C.F.R. §§ 404.1520(g), 416.920(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 brings a sweeping range of issues for the Court's consideration. She argues that the ALJ erroneously: (1) rejected the opinion of Dr. Dianna L. Fury, M.D. (Doc. 15 at 9-12); (2) rejected the opinion of Ms. Rebecca Frock, M.A., LPCC (id. at 13-15); (3) relied on Plaintiff's alleged failure to seek treatment in discounting her allegations of her symptoms (id. at 15-17); (4) weighed an opinion from Dr. Susan Flynn, Ph.D. (id. at 17-19); (5) rejected one of Dr. J. Tendler, M.D.'s opined moderate limitations (id. at 20); (6) assessed Plaintiff's subjective symptoms (id. at 21-22); (7) failed to clarify the VE's testimony (id. at 23-24); and (8) failed to make a significance determination regarding the number of jobs available in the national economy (id. at 24-25). The Court will examine each argument below.

         A. Dr. Fury

         Plaintiff argues that the ALJ improperly rejected the opinions of her treating physician, Dr. Fury. Id. at 9-12. Dr. Fury began treating Plaintiff for back pain September 22, 2014.[3] AR at 431-33. Plaintiff visited Dr. Fury a total of seven times for back pain and/or depression from September 2014 through September 2016 (see AR at 431-33 (Sept. 22, 2014), 428-29 (Oct. 1, 2014), 425-27 (Oct. 14, 2014), 456-58 (Dec. 17, 2014), 452-54 (Dec. 31, 2014), 565-68 (Mar. 9, 2015), 561-64 (Sept. 18, 2015)), and one time in 2016 for a complaint of hip pain (see AR at 616-19 (Sept. 27, 2016)). The record contains a December 17, 2014 Medical Source Statement of Ability to do Work-Related Activities for Social Security Disability (AR at 446-48), a November 6, 2016 Physician's Certification (AR at 646), a November 18, 2016 letter (AR at 647), and a March 25, 2015 letter (AR at 163) from Dr. Fury.

         In the December 17, 2014 Medical Source Statement, Dr. Fury opined that Plaintiff is limited to lifting or carrying less than ten pounds occasionally or frequently due to her lumbar radiculopathy and degenerative disc disease in her lower back; she “needs to be able to move frequently from sitting to standing and can walk short distances at a time”; she can stand, walk, and/or sit less than two hours in an eight-hour day because of “9 pain [with] any position that she is in [more than two hours]”; both overhead reaching and traveling are limited secondary to pain; and she has non-exertional issues (“chronic neuropathic pain present at all times”) that would affect her ability to work full-time. AR at 446-47. Dr. Fury opined that Plaintiff would be unable to perform full-time work “at this time, ” and was limited to working less than 50% of the time. AR at 448.

         The November 6, 2016 statement is part of a Physician's Certification on an application “for a discharge of a federal student loan . . . .” AR at 646. Dr. Fury completed a section entitled “Disabling Condition, ” noting “(1) low back pain, (2) [a t]ear in disk at ¶ 5-S1, radicular pain” and stating that Plaintiff “has severe pain in lower back [and] going down legs most days.” AR at 646. She wrote that Plaintiff “can only sit or stand at very short intervals”; “[t]akes several hours to shower/dress because [of] pain”; and “[i]s in pain daily [and] difficult to be in any social situations for long periods of time.” AR at 646.

         Dr. Fury wrote a letter on November 18, 2016, and stated that Plaintiff:

has had more pain recently and is not able to complete any task in a short time period. This includes [activities of daily living] and she told me that it took her several hours to ready herself to come in for a doctor appointment recently. She would not be able to work in any capacity at all and is not able to take care of her home either. Her most recent MRI did have a new finding of a tear in one of her disks in the lumbar region. Because I am not an orthopedic specialist, I do not know how much this affects her pain and ability to move. I also do not know what this means in the future for her pain and ability to move.

AR at 647. Dr. Fury's March 25, 2015 letter was similar, but shorter: Plaintiff “is not able to work at all and is getting disability but unsure when. She has a back injury that is r on [sic] healing and will not be working. She needs to continue her medical benefits because of this.” AR at 163.

         ALJ Richter declined to give Dr. Fury's opinion controlling weight and instead gave it “little weight” for a variety of reasons. See AR at 20-21. Plaintiff contends that the ALJ's analysis under 20 C.F.R. § 404.1527 was flawed. Doc. 15 at 9-12.

         When analyzing an opinion from a claimant's treating physician, an “ALJ must complete a sequential two-step inquiry, each step of which is analytically distinct.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

An ALJ must first consider whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques. . . . If the ALJ finds that the opinion is well-supported, he must then confirm that the opinion is consistent with other substantial evidence in the record.

Mays v. Colvin, 739 F.3d 569, 574 (10th Cir. 2014) (quoting Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (internal quotations omitted) (alterations in original)). “If the opinion is deficient in either of these respects, it is not to be given controlling weight.” Krauser, 638 F.3d at 1330. However, “[e]ven if a treating opinion is not given controlling weight, it is still entitled to deference . . . .” Id. The ALJ “must make clear how much weight the opinion is being given . . . and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight ...

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