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Rush v. Saul

United States District Court, D. New Mexico

July 11, 2019

RENEE PAMELA RUSH, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER [2]

          STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on the Social Security Administrative Record filed July 31, 2018, Doc. 12, in support of Plaintiff Renee Pamela Rush's Complaint, Doc. 1, seeking review of the decision of Defendant Andrew Saul, Commissioner of the Social Security Administration, denying Plaintiff's claim for disability insurance benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. On November 5, 2018, Plaintiff filed her Motion to Reverse and Remand for a Rehearing With Supporting Memorandum. Doc. 18. The Commissioner filed a Brief in Response on February 1, 2019, Doc. 26, and Plaintiff filed a Reply on February 19, 2019, Doc. 27. 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 Renee Pamela Rush suffers from the following severe impairments: Obstructive sleep apnea; Cavernous angioma with associated headaches; Attention deficit disorder; Major depressive disorder; and Cognitive disorder, not otherwise specified. Administrative Record (“AR”) at 14. She alleges that she became disabled as of January 5, 2008. Id. She completed one year of college and worked in the past as a sales associate and childcare provider. AR 154, 584-85.

         On June 1, 2009, Ms. Rush filed concurrent claims of disability under Title II and Title XVI. AR 12. Her applications were initially denied on November 3, 2009 (AR 52), and upon reconsideration on April 23, 2011 (AR 53-54). Administrative Law Judge (“ALJ”) Ann Farris conducted a hearing on October 4, 2012. AR 27-50. Ms. Rush appeared in person at the hearing with attorney representative Michael Armstrong. AR 27. The ALJ took testimony from Ms. Rush and an impartial vocational expert (“VE”), Cornelius J. Ford. AR 27-50.

         On October 31, 2012, ALJ Farris issued an unfavorable decision. AR 9-22. After the Appeals Council denied review, AR 1, Ms. Rush appealed to federal court. On March 10, 2015, Magistrate Judge Stephan M. Vidmar issued a Memorandum Opinion and Order granting Ms. Rush's Motion and remanding the case for further proceedings. AR 612-20. Judge Vidmar held that ALJ Farris' evaluation of the opinion of Ms. Rush's psychiatrist, Dr. Hall, violated the treating physician rule. AR 619. “The question [for the ALJ] is not whether Dr. Hall showed that his opinion was well supported. The question is whether it actually was well-supported. The ALJ in this case made no findings suggesting that Dr. Hall's opinion was not supported.” Id. (citations omitted). Judge Vidmar remanded for further proceedings. AR 620.

         On January 20, 2016, Ms. Rush appeared and testified at a second hearing before ALJ D'Lisa Simmons. AR 716-65. She appeared with her attorney, Mr. Armstrong. AR 716. The ALJ took testimony from Ms. Rush and an impartial vocational expert (“VE”), Mary Diane Weber. Id. ALJ Simmons issued an unfavorable decision on March 10, 2016 (AR 627-49). In subsequent proceedings in federal court, the Commissioner stipulated to a remand. AR 657-58. On March 6, 2017, the Appeals Council remanded to an ALJ to discuss “additional evidence submitted to the hearing office[r] prior to the issuance of the decision, ” including “opinions from treating sources and third party statements from friends and family.” AR 661.

         Ms. Rush then appeared and testified at a hearing before ALJ Stephen Gontis on November 15, 2017. AR 522-93. She was represented by William S. Rode of Michael D. Armstrong & Associates. AR 492, 522, 816. Also appearing and testifying were Medical Experts (“MEs”) Stephen Goldstein M.D. and Alfred Jonas M.D., who both opined that no listing is met or equaled. AR 527-67. VE Weber testified as to the work in the national economy that a hypothetical individual could perform with Ms. Rush's limitations. AR 584-91. ALJ Gontis determined that Ms. Rush's date last insured is March 31, 2012. AR 495. He found that she was not disabled between January 5, 2008 and the date of his decision (January 16, 2018). AR 493, 512-13. The ALJ's decision is the Commissioner's final decision for purposes of judicial review pursuant to 20 C.F.R. § 404.984(a). The Court reserves discussion of the medical records relevant to this appeal for its analysis.

         II. Applicable Law

         A. Disability Determination Process

         An individual is considered disabled 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) (pertaining to disability insurance benefits); see also Id. § 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 evaluation process (“SEP”) 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.”[3] If the claimant is engaged 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(s) 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(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 listings described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “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 [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. §§ 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 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 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 (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). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence “is ‘more than a mere scintilla.'” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

         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). But where the reviewing court “can follow the adjudicator's reasoning” in conducting its review, “and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more comprehensive the ALJ's explanation, the easier [the] task; but [the court] cannot insist on technical perfection.” Id.

         III. Analysis

         In support of her Motion to Remand, Ms. Rush argues that the ALJ impermissibly disregarded moderate limitations assigned by a state agency non-examining consultant, Dr.

         Walker; improperly weighed the opinion of Dr. Hall, Ms. Rush's treating physician; and improperly weighed opinion evidence from a licensed clinical social worker. Doc. 19 at 2.

         A. The ALJ Did Not Improperly Pick and Choose from a Consulting Doctor's Opinion.

         Ms. Rush argues that the ALJ's RFC determination in this case is an improper attempt to “pick and choose” portions of a consulting doctor's opinion favorable to a non-disability finding while disregarding other portions without explaining why. Because the ALJ arrived at essentially the same RFC as the consulting doctor, the Court rejects Ms. Rush's argument that the ALJ improperly disregarded some of his opinions.

         State agency non-examining consultant Scott Walker, M.D, evaluated Ms. Rush's medical records on October 29, 2009. AR 284-88. Dr. Walker reviewed and discussed the medical evidence and, in answering questions relating to Ms. Rush's mental residual functional capacity assessment (“MRFCA”), assessed in Section I the following “moderate limitations”[4]:

. Understanding, remembering, and carrying out detailed instructions;
. Maintaining attention and concentration for extended periods of time;
. Performing activities within a schedule, maintaining regular attendance, and being punctual within customary tolerance;
. Sustaining an ordinary routine without special supervision;
. Completing a normal workday and workweek without interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods;
. Interacting appropriately with the general public;
. Accepting instructions and responding appropriately to criticism from supervisors;
. Getting along with coworkers or peers without distracting them or exhibiting behavioral ...

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