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Ochoa v. Berryhill

United States District Court, D. New Mexico

April 15, 2019

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



         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 12) filed June 13, 2018, in support of Plaintiff Dario Ramon Ochoa'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 Plaintiff's claim for disability insurance benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq. On August 16, 2018, Plaintiff filed his Motion to Reverse and Remand for a Rehearing With Supporting Memorandum (“Motion”). Doc. 15. The Commissioner filed a Brief in Response on October 16, 2018 (Doc. 17), and Plaintiff filed a Reply on November 7, 2018. Doc. 20. 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

         Claimant Dario Ochoa (“Mr. Ochoa”) suffers from the following severe impairments: lumbar arthralgias; abdominal pain of unknown etiology; spine disorders; obesity; anxiety; and depression. Administrative Record (“AR”) at 12.[2] He alleges that he became disabled at least as of March 1, 2011. AR 76, 77, 266, 1138. He completed high school and two years of college and had past relevant work as a driver for United Parcel Service (“UPS”). AR 230-31.

         A. Procedural History

         On April 1, 2014, Mr. Ochoa filed concurrent claims of disability under Title II and Title XVI. As of April 2, 2014, Mr. Ochoa was found to be disabled and awarded supplemental security income (SSI). AR 64-71. Mr. Ochoa's Title II application, however, was denied on August 18, 2014, and upon reconsideration on January 29, 2015. AR 77-78. Mr. Ochoa requested a hearing before an Administrative Law Judge (“ALJ”), and ALJ James Linehan conducted a hearing on January 11, 2017. AR 33-63. Mr. Ochoa appeared in person at the hearing with attorney representative Jonathan Woods. Id. The ALJ took testimony from Mr. Ochoa and an impartial vocational expert, Melissa P. Brassfield. Id. On February 9, 2017, ALJ Linehan issued an unfavorable decision. AR 10-19.

         On January 26, 2018, the Appeals Council issued its decision denying Mr. Ochoa's request for review and upholding the ALJ's final decision. AR 1-6. On March 27, 2018, Mr. Ochoa timely filed a Complaint seeking judicial review of the Commissioner's final decision. Doc. 1.

         B. Medical Evidence

         On October 9, 2007, Mr. Ochoa presented to UNMH Internal Medical, Dr. Howard Waitzkin, with a variety of complaints. AR 467. Mr. Ochoa reported that he had been suicidal after his divorce, but not recently. AR 469. “He was in counseling which helped. He is feeling better now emotionally.” Id. “His depression seems to be improving to some extent.” Id. Dr. Waitzkin noted that Mr. Ochoa experienced weight gain which “might be related to psychological issues.” Id. On November 7, 2007, however, Mr. Ochoa denied having any depression to Dr. Waitzkin. AR 463. By December 2007, Dr. Waitzkin was of the opinion that Mr. Ochoa's many unsubstantiated complaints of pain were possibly due to somatization and he found it necessary to “frankly discuss the possibility of psychotherapy” with Mr. Ochoa. AR 461.

         In August of 2008, UNMH rheumatology confirmed that Mr. Ochoa had “chronic pain syndrome without any clear etiology.” AR 456. In November, Andrea Weiss, PA-C, noted that Mr. Ochoa suffered from an “[u]nexplained constellation of symptoms.” AR 454. She explained: “I am not clear about the etiology of this, but I suspect that the patient does have some form of depression, which is untreated. He has declined mental health medication and referrals in the past.” Id.

         In early 2009, Mr. Ochoa expressed “that he has been so miserable that he wants to see a psychiatrist, ” an action PAC Weiss endorsed. AR 404-05. She described his symptoms as “psychosomatic” and opined that he “probably has some undiagnosed form of mental illness.” AR 405. As for Mr. Ochoa's “continuing sleep problems, ” she “suspect[ed] that this is part of his undiagnosed mental health disorder which I feel is several fold, depression, somewhat anxiety and perhaps even a personality disorder and some hypochondriasis.” Id.

         In February 2009, the Gastroenterology Clinic saw Mr. Ochoa and noted that “[t]he patient thinks that he may have anxiety and depression and is working on this with Andrea Weiss.” AR 393. The clinician Dr. Martin Kistin also noted that Mr. Ochoa “works part-time as a helper for a friend of his who does construction.” Id. In the fall of 2009, Mr. Ochoa was still complaining of “some anxiety, ” AR 309, and Dr. Akshay Sood observed that “although he does complain of anxiety issues, ” Mr. Ochoa “has no known psychiatric illnesses.” AR 384.

         In June 2010, Mr. Ochoa presented to establish care with First Choice Community Healthcare complaining of muscle pain, aches, digestive problems, and fatigue. AR 303. Treatment notes describe him as “still disturbed” and not using anxiety medication because it bothered his stomach. Id. The assessment was back pain and depression and he was prescribed Prozac. Id. He continued to treat at First Choice, who refused to give him narcotics. AR 311.

         On October 26, 2010, Mr. Ochoa presented to the UNM Emergency Department (“ED”) suffering from substance withdrawal. AR 388. He had run out of his prescribed oxycodone two days earlier, and reported a recent suicide attempt because he was “afraid to live in pain.” Id. At the same time, Mr. Ochoa “denied current h[istory] o[f] psychotic symptoms.” Id. The RN noted he “reports withdrawal symptoms of back and stomach pain, nausea, joint and general body pain, along with increasing levels of depression and anxiety.” Id. He was referred to the Bernalillo Metropolitan Assessment and Treatment Services (“MATS”) Detox program, id., but there are no treating records from this facility.

         In March 2011, Mr. Ochoa was back at the Gastroenterology Clinic, where his psychiatric history was reviewed with the patient and was negative. AR 447. One of the diagnoses was instead “[c]hronic narcotic use.” AR 448. On April 3, 2011, three days after his date of last insured, Mr. Ochoa again presented to the ED “because he ran out of his pain meds and told them that he was suicidal, which is how he feels only when he runs out of his pain meds.” AR 699. On April 4, he stated that “[w]hen he's on pain meds all is well, he's been on them for 6 years, when he's close to running out he feels depressed, and last evening he felt very badly.” Id. The record indicated he had no past psychiatric diagnoses. Id. He reported he saw a therapist 7 years ago for depression and “mostly chronic pain” but it did not help. Id. “He doesn't want therapy as he's not ready to deal with his pain med addiction, and doesn't think that therapy works for him. Doesn't want behavioral health services.” AR 701.

         On the same date, CNP Jacqueline Stoll reported that “[h]e denies any difficulty with anxiety except when he is going through drug withdrawal” and diagnosed him with “Pain associated with psychological factors (307.8), Opiate induced mood disorder, [and] Opiate dependence.” AR 802. Her qualitative assessment was Mr. Ochoa had a “[h]istory of suicidal ideation when in opiate withdrawal and a history of chronic pain as well as multiple other medical complaints of questionable origin.” AR 803. She stated that Mr. Ochoa “is being referred for Crisis Counseling which he agrees to. Discussed with him the possibility of pursing counseling regarding his opiate use and problems it has caused him. He is not willing to consider antidepressant therapy at this time.” Id.

         In October 2012, Mr. Ochoa treated with Dr. Fawcell in the Department of Psychiatry. AR 797-802. Her notes indicate that Mr. Ochoa had undergone prior treatment for depression and had been prescribed medication with little effect. AR 800. She recommended psychotherapy and Mr. Ochoa ...

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