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Egan v. Berryhill

United States District Court, D. New Mexico

June 4, 2019

MARIA ANN EGAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Maria Ann Egan's (“Ms. Egan”) Motion to Reverse and Remand for a Rehearing with Supportive Memorandum (Doc. 19) (“Motion”), filed November 21, 2018, seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“Commissioner”) denying Ms. Egan's claim for Title II disability insurance benefits and Title XVI supplemental security income benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner filed a response in opposition to the Motion on January 25, 2019, (Doc. 21), and Ms. Egan filed a reply in support of the Motion on February 7, 2019. (Doc. 23.) Having meticulously reviewed the entire record and the applicable law and being otherwise fully advised, the Court FINDS that Ms. Egan's Motion is well taken and should be GRANTED.

         I. Legal Standards

         A. Standard of Review

         This Court must affirm the Commissioner's final decision denying social security benefits unless: (1) “substantial evidence” does not support the decision; or, (2) the Administrative Law Judge (“ALJ”) did not apply the correct legal standards in reaching the decision.[2] 42 U.S.C. §§ 405(g), 1383(c)(3); Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The Court must meticulously review the entire record but may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008); Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as 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 or if there is a mere scintilla of evidence supporting it.” Id. Although the Court may not re-weigh the evidence or try the issues de novo, its consideration of the record must include “anything that may undercut or detract from the [agency]'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 agency's] findings from being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         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). Thus, 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 . . . must discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence he rejects.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

         B. Disability Determination Process

         A person must be “under a disability” to qualify for disability insurance benefits under Title II. 42 U.S.C. § 423(a)(1)(E). Similarly, a “disabled” person may qualify for supplemental security income benefits under Title XVI. 42 U.S.C. § 1382(a)(1). An individual is considered to be “under a disability” if 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).

         The Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies the statutory criteria:

(1) At step one, the ALJ must determine whether the claimant is engaging in “substantial gainful activity.”[3] If the claimant is engaging in substantial gainful activity, she is not disabled regardless of her 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 (or combination of impairments) that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment meets or equals in severity one of the listings described in Appendix 1 of 20 C.F.R. Part 404, Subpart P, and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If none of the claimant's impairments meet or equal one of the listings, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” This step involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ must consider all of the relevant evidence and determine what is “the most [claimant] can still do despite [her 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. Second, the ALJ must determine the physical and mental demands of the claimant's past work. Third, the ALJ must determine whether, given the claimant's RFC, the claimant is capable of meeting those demands. A claimant who is able to perform her past relevant work is not disabled.
(5) If the claimant is unable to perform her 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, 399 F.3d at 1261. 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 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing other work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         II. Background and Procedural History

         A. Factual Background

         Ms. Egan alleges that she became disabled on January 6, 2014 at fifty-eight years of age due to cervical spondylosis, degeneration of lumbar intervertebral discs, asthma, and thyroid problems. (AR 78, 90.[4]) Previously, Ms. Egan was an information technology (“IT”) professional who did government contract work. (AR 36-38, 84, 244, 260, 266-73.)

         Ms. Egan moved from California to Virginia in or about 2004. (AR 36-37, 377, 425-37.) She had a cervical MRI at the Virginia Hospital Center on July 5, 2005. (AR 774-75.) Neurosurgeon Charles Riedel, M.D., ordered the MRI, which documented “[m]oderately severe spondylotic changes of the cervical spine” and “[m]oderate canal stenosis at L 5-C6 with signal abnormality in the cord which could indicate edema versus myelomalacia.” (Id.) Dr. Riedel performed a cervical discectomy with C5-C6 fusion on Ms. Egan in 2006. (AR 444, 571.) Ms. Egan had another cervical MRI in December 2010.[5] (AR 449-50.)

         Ms. Egan saw her primary care physician, Kathryn Dreger, M.D., four times in late 2013 for a comprehensive medical examination and follow-up appointments for hypothyroidism and migraines. (AR 361-62, 366-67, 370-71, 376-77.) At none of these appointments did Ms. Egan complain of back or neck pain; and, at her November 11, 2013 comprehensive medical examination, Dr. Dreger noted that Ms. Egan's “neck has been ‘doing great, '” and that there was “[n]o misalignment, asymmetry, crepitation, defects, tenderness, masses, effusions, decreased range of motion, instability, atrophy or abnormal strength or tone in the head, neck, spine, ribs, pelvis or extremities.” (AR 377-78.)

         On January 6, 2014, Dr. Riedel saw Ms. Egan and noted that she had “hurt herself” two days earlier by putting on a “heavy army pack.” (AR 444.) In addition to chronic weakness in her left arm, Dr. Riedel noted that Ms. Egan had developed acute lower back pain with sciatica and had been to the emergency room, where she was given muscle relaxants and analgesics.[6] (Id.) Dr. Riedel ordered cervical and lumbar MRIs, a nerve conduction study and electromyography (“EMG”), and physical therapy. (AR 444-50.) The cervical and lumbar MRIs were performed at the Virginia Hospital Center on January 17, 2014, and the nerve conduction study and EMG at Northern Virginia Neurologic Associates on June 20, 2014. (AR 445-50.) In addition, Ms. Egan attended about nineteen physical therapy appointments with Thomas Daly, P.T., between January 22 and June 25, 2014.[7] (AR 493-519, 636-40.) Ms. Egan also had follow-up appointments with Dr. Riedel on March 17, May 22, and July 15, 2014. (AR 441-43.) On May 22, 2014, Dr. Riedel noted that physical therapy had been “very helpful” regarding Ms. Egan's lower back pain, but that the pain in her interscapular area and numbness in her hands was “not responding as well to her therapy.” (AR 442-43.) On July 15, 2014, based on Ms. Egan's history, physical examinations, and test results, Dr. Riedel diagnosed Ms. Egan with cervical stenosis C3-C4, C4-C5, and C6-C7 status post prior C5-C6 fusion, chronic left C6 radiculopathy, and lumbar degenerative disc disease and spondylosis with scoliosis, as well as carpal tunnel syndrome. (AR 441.)

         Dr. Dreger saw Ms. Egan four times during the first half of 2014 as well. (AR 347-57.) Specifically, on January 31, 2014, Dr. Dreger recorded that Ms. Egan had injured herself by bending backwards while lifting weights at a hotel and reported “much anterior pain.” (AR 356.) On February 14, 2014, she noted that physical therapy was helping and that Ms. Egan reported bad days and good days. (AR 353.) On March 27, 2014, Dr. Dreger indicated that Ms. Egan did not want injections and did not need surgery but was using a cane to walk, still having pain in her hip, leg, hands, and arms, and taking Vicodin[8] for pain. (AR 350.) She also noted that Ms. Egan had difficulty getting onto the exam table at this appointment. (AR 351.) Finally, on June 27, 2014, Dr. Dreger recorded that Ms. Egan was attending physical therapy, seeing Dr. Riedel, and “doing ‘real well.'” (AR 347.)

         Ms. Egan made an unsuccessful attempt to return to work after January 6, 2014 but then filed for short-term disability benefits from private insurer UNUM on February 20, 2014. (AR 251, 782-83.) Her short-term disability benefits were ultimately converted to long-term disability benefits, and she never returned to work. (AR 38-39, 331.) She moved to New Mexico in October 2014 to be near her mother and sister. (AR 62, 274.)

         Ms. Egan completed two adult function reports, on November 20, 2014 and June 12, 2015. (AR 277-84, 294-301.) On November 20, 2014, Ms. Egan indicated, inter alia, that she had no problems with personal care, that she microwaved frozen dinners for meals, that a family member did her household chores, driving, and shopping because she was unable to do so, and that she used a cane and a neck brace. (AR 277-84.) On June 12, 2015, Ms. Egan indicated, inter alia, that she had difficulty dressing with buttons, doing her hair, shaving, and driving, that she prepared microwaved frozen dinners and sandwiches for meals, that she cleaned up after meals, cleaned house, vacuumed, dusted, mopped, and did laundry and yard work, that she walked, drove, and was able to go out alone, that she shopped for groceries in a store every other weekend, that she sometimes did Pilates, and that she used a cane and neck/back brace. (AR 294-301.) On both dates, she indicated that she lived alone and did not take care of anyone else. (AR 277-78, 294-95.)

         On September 16, 2015, Ms. Egan established with primary care physician Rosa Galvez, M.D., at Lovelace Medical Group in Albuquerque. (AR 720-24.) At this appointment, inter alia, Ms. Egan reported fluctuating back pain and severe, worsened neck pain. (AR 720.) Dr. Galvez referred Ms. Egan for physical therapy and to neurosurgeon Andrew Metzger, M.D., [9] and prescribed Vicodin, rizatriptan, [10] and levothyroxine.[11] (AR 723.) Dr. Galvez saw Ms. Egan on five more occasions: October 19 and December 22, 2015, and January 25, February 22, and March 31, 2016. (AR 667-719.) On October 19, 2015, Dr. Galvez added gabapentin[12] to Ms. Egan's prescriptions. (AR 713-19.) On December 22, 2015, Ms. Egan reported that her lower back and neck pain were worsening. (AR 688-94.) Dr. Galvez noted improvement of symptoms with physical therapy and that Ms. Egan had elected to continue exercises at home. (AR 694.) On January 25, 2016, Ms. Egan reported severe upper, middle, and lower back pain with numbness; and, Dr. Galvez added Lisinopril[13] to Ms. Egan's prescriptions. (AR 682-83, 686.) On February 22, 2016, Dr. Galvez noted that Ms. Egan's back pain was “stable and well controlled.” (AR 680-81.) On March 31, 2016, Ms. Egan reported moderate bilateral hand and toe numbness, worsened neck and lower back pain, and bilateral arm weakness and numbness. (AR 667-71.) According to Dr. Galvez, at this appointment Ms. Egan did not feel injections were warranted and requested a referral to a pain management specialist, which Dr. Galvez provided. (Id.) Ms. Egan also had an appointment with Dr. Galvez on September 12, 2016 but left without being seen. (AR 663-65.)

         Ms. Egan began attending physical therapy with Charlie Abadie, P.T., at Lovelace Rehabilitation Hospital on September 25, 2015. (AR 730-34.) On that date, Mr. Abadie noted that Ms. Egan was independent in her daily living activities including self-care, cooking, cleaning, driving, and community outings. (AR 731.) He also noted that she sometimes wore a neck collar at home and occasionally used a cane. (Id.) He further stated that, “[d]espite her lengthy history of issues and moderate-to-severe nature of pain issues from time to time, this patient performs quite well during evaluation.” (AR 734.) More specifically, he observed that Ms. Egan had slightly flat back and forward head posture, somewhat limited range of motion for cervical extension and lower back flexion, slight tenderness or tightness at the lower back, some tightness chiefly into neck extension and lower back flexion, and otherwise normal examination findings. (AR 731-33.)

         Ms. Egan participated in physical therapy with Mr. Abadie on September 29, 2015 and October 13, 2015. (AR 739, 741). She canceled her appointments on October 7, 2015 and October 20, 2015, on the latter date reporting that she was “in too much pain.” (AR 740, 742.) She arrived late for her appointment on October 30, 2015, and although Mr. Abadie was not able to treat her, he did speak with her for about twenty minutes. (AR 743.) On this occasion, Mr. Abadie advised Ms. Egan that she did not necessarily need to make up the visits she had missed as long as she started to focus on herself when doing her home exercises. (AR 743.) Mr. Abadie discharged Ms. Egan on November 16, 2015 for nonattendance. (AR 744.)

         Gerald Blazek, M.D., saw Ms. Egan twice for pain management, on November 2, 2016 and December 7, 2016. (AR 756-61, 768-72.) On examination at both appointments, he noted decreased strength and sensation in Ms. Egan's arms, hands, and ankles. (Id.) He further noted that Ms. Egan had no interest in blocks for her pain, wished to continue with gabapentin and hydrocodone for pain management, and agreed to abide by a narcotic agreement. (AR 758.) At her first appointment with Dr. Blazek, test results indicated and Ms. Egan confirmed that she also smoked marijuana for pain relief. (Id.)

         At the January 26, 2017 hearing before the ALJ, Ms. Egan testified that she was living with her mother and engaging in minimal daily living activities, including preparing simple meals, reading, watching television, getting medication for herself and her mother, and providing her mother with companionship. (AR 35, 42-44.) According to Ms. Egan's testimony, the following conditions prevent her from working: numbness in her hands and arms, which prevents her from typing, writing, buttoning clothes, grasping, handling, and fingering; back pain and numbness in her legs when she sits; limited range of motion in her arms; lack of concentration and disrupted sleep; and, migraine headaches. (AR 45-51, 58-59, 63.) Ms. Egan further testified that, on a good day, her pain with medication is between 7 and 8 on a 10-point scale. (AR 63-64.)

         The record includes the following medical opinion evidence. On February 19, April 14, April 25, June 11, and August 6, 2014, Dr. Riedel completed forms in support of the short- and long-term disability claims Ms. Egan filed with UNUM. (AR 475-77, 480-81, 522-23, 629-30, 782-83.) Dr. Riedel expressed opinions regarding Ms. Egan's functional restrictions and limitations on these forms. (Id.) In addition, Dr. Riedel completed a form for the Virginia Employment Commission on August 4, 2014, on which he opined about Ms. Egan's ability to work. (AR 190.)

         On March 17, 2014, Mr. Daly completed a form for UNUM in support of Ms. Egan's short-term disability claim, in which he expressed an opinion about Ms. Egan's functional restrictions and limitations. (AR 454-55.)

         On February 21, 2015, state agency consultative examiner Roxanna Phillips, M.D., reported that she was “[u]nable to determine” Ms. Egan's functional limitations because she was “unsure of the validity of [Ms. Egan's] responses.”[14] (AR 652, 657.)

         On March 11, 2015, non-examining medical consultant Robert Redd, M.D., opined regarding Ms. Egan's RFC at initial consideration; and, on June 10, 2015, non-examining medical consultant S. Williams, M.D., opined regarding Ms. Egan's RFC at reconsideration. (AR 86-87, 110-11.)

         Finally, in an undated, hand-written note with no supporting documentation, Basil Abramowitz, M.D., expressed an opinion regarding Ms. Egan's functional restrictions and limitations. (AR 659.)

         B. Procedural History

         On August 11, 2014, Ms. Egan protectively filed applications for disability insurance benefits under Title II, and supplemental security income benefits under Title XVI, of the Social Security Act, alleging an onset date of January 6, 2014. 42 U.S.C. §§ 401 et seq.; 42 U.S.C. §§ 1381 et seq.; (AR 12, 76-77, 90, 96, 102, 114.) The agency denied Ms. Egan's applications at the initial level and upon reconsideration on March 11, 2015 and June 23, 2015, respectively. (AR 76-77, 126-27.) On August 13, 2015, Ms. Egan requested a hearing before an ALJ. (AR 141.) ALJ Michael Leppala conducted a hearing on January 26, 2017. (AR 29-75.) Ms. Egan appeared in person at the hearing with attorney representative Michael Armstrong. (Id.) The ALJ took testimony from Ms. Egan and from impartial vocational expert (“VE”) Valerie Rodriguez. (Id.) On May 3, 2017, the ALJ ...


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