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Arellano v. Saul

United States District Court, D. New Mexico

August 26, 2019

DEBRA ROSE ARELLANO, Plaintiff,
v.
ANDREW SAUL, 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 Debra Rose Arellano's (“Ms. Arellano”) Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 23) (“Motion”), filed February 15, 2019, seeking review of the unfavorable decision of Defendant Andrew Saul, Commissioner of the Social Security Administration (“Commissioner”), on Ms. Arellano's claim for Title II disability insurance benefits under 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner filed a response in opposition to the Motion on April 15, 2019, (Doc. 29), and Ms. Arellano filed a reply in support of the Motion on May 1, 2019. (Doc. 32.) Having meticulously reviewed the entire record and the applicable law and being otherwise fully advised in the premises, the Court FINDS that Ms. Arellano's Motion is well taken and should be GRANTED IN PART.

         I. Background

         A. Procedural History

         On May 6, 2016, Ms. Arellano filed an application with the Social Security Administration (“SSA”) for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. (Administrative Record (“AR”) 266.) She alleged a disability onset date of March 24, 2016 and that she was suffering from post-traumatic stress disorder (“PTSD”), depression, anxiety, insomnia, fibromyalgia, back pain, muscle spasms, panic attacks, memory loss, a bulging disc, and broken knees. (AR 169-70, 266.) Disability Determination Services (“DDS”) determined that Ms. Arellano was not disabled both initially (AR 169-80) and on reconsideration. (AR 183-98.) Ms. Arellano requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of her application. (AR 210-11.)

         ALJ Michael Leppala held a hearing on September 7, 2017. (AR 115-67.) Ms. Arellano and Vocational Expert (VE) Leslie White testified. (Id.) ALJ Leppala issued an unfavorable decision on January 24, 2018. (AR 026-044.) Ms. Arellano submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR 263-65), which the Appeals Council denied on May 4, 2018. (AR 001-4.) Consequently, the ALJ's decision became the final decision of the Commissioner from which Ms. Arellano appeals. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         B. Ms. Arellano's Background, Medical Treatment, and Hearing Testimony

         Ms. Arellano is a high school graduate who held various data entry positions until she stopped working in March 2016 at age forty-two. (AR 266, 287, 288.) She traces her physical impairments to a 2007 incident in which she suffered two broken knees and a broken right wrist when her then-husband, whom she divorced in January 2010, hit her “head on” with his Harley Davidson motorcycle while she was standing on the road. (AR 136, 267, 434.) She spent one week in the hospital receiving treatment for her injuries. (AR 434.) In November 2012, she began seeking treatment for back pain and difficulty sleeping. (AR 434-36.) She established care with Dr. James Delgado at Christus St. Vincent Medical Group on January 2, 2013 to address back, neck, wrist, and knee pain (AR 363-65) and continued to see Dr. Delgado for pain management through at least January 2017.[2] (See AR 351-420, 498-513, 558-619, 796-99, 804-809.) Dr. Delgado began treating Ms. Arellano's low back pain with narcotic pain medication on January 15, 2013. (AR 360.) In his treatment notes from January 29, 2013, Dr. Delgado commented, “I think we may be underestimating the role of the intentional injury related to her ex and the contribution this may have with her ongoing pain.” (AR 358.) Dr. Delgado initially explored alternative treatment options such as physical therapy and injections with Ms. Arellano but noted in March 2013, “It seems clear there are no other options [Ms. Arellano] is willing to consider but narcotic pain medication.” (AR 355.) When Ms. Arellano complained of worsening back pain in August 2013 and reported that she was “having to take more pain medication to get the same relief[, ]” Dr. Delgado again discussed other treatment options with her and indicated that she would need to be sent for a neurosurgical evaluation if her symptoms did not improve. (AR 378-79.) At that time, though, he continued her on hydrocodone and prescribed a muscle relaxant to address her complaints of muscle spasms. (Id.) Thereafter, Dr. Delgado continued to treat Ms. Arellano's low back pain, lumbar disc degeneration, and knee pain with narcotic pain medications and muscle relaxants. (AR 367, 371, 373, 375, 377.)

         At a visit with Dr. Delgado in June 2014, Ms. Arellano reported that she was “feeling very down after recently recognizing a history of childhood sexual abuse” she reportedly suffered from age six to age twelve. (AR 400, 553.) She inquired about the possibility of “medical therapy” to address her feelings of depression, and Dr. Delgado prescribed her paroxetine to treat what he diagnosed as PTSD and encouraged her to seek counseling. (AR 401.)

         In July 2014, Ms. Arellano reported increased pain in her left knee and asked about adjusting her pain medication. (AR 397.) Dr. Delgado agreed to a one-month trial at a higher dose of hydrocodone. (AR 398.) He continued her at the higher dose of hydrocodone, in addition to continuing to prescribe a muscle relaxant and paroxetine, through November 2015, at which time informed Ms. Arellano that he would no longer prescribe her narcotic pain medications due to a positive drug test for cocaine. (AR 382, 384, 387, 389, 392, 395, 397-98, 403, 406, 409, 415, 419, 511-13.) In December 2015 and January 2016, Ms. Arellano attempted to establish her primary care with five other doctors for chronic pain management, all of whom refused to prescribe narcotics and two of whom prescribed tramadol, a narcotic-like pain reliever. (AR 427-28, 429-31, 441-43, 443-49, 507-10.) She returned to Dr. Delgado in February 2016 at which time Dr. Delgado had a “lengthy discussion” with her “regarding reconsideration of narcotic pain medication prescriptions.” (AR 504.) The urine test she was given that day came back negative for cocaine, and Dr. Delgado agreed to consider restarting narcotic pain medications once he reviewed Ms. Arellano's prescription monitoring report. (AR 504-505.) In April 2016 after confirming there were “no discrepancies” in that report, he provided a one-month refill of oxycodone at her original, lower dose and noted he would continue “careful monitoring” of any illicit drug use. (AR 500-501.) He also started her on Cymbalta at that time to treat both her PTSD and her chronic pain. (AR 501.)

         On May 28, 2016, Ms. Arellano was hospitalized following what her family believed was a credible suicide threat. (AR 519.) Hospital records indicate that Ms. Arellano had a blood alcohol level of 150 and tested positive for cocaine, opiates, and cannabis. (Id.) According to Ms. Arellano, she threatened to harm herself because she “just wanted to scare her husband[, ]” who was also heavily intoxicated and with whom she had gotten into a fight. (Id.) She admitted having a history of drinking that started during her first marriage but contended that she stopped abusing alcohol in 2012 and only drank occasionally thereafter. (AR 520.) She was admitted for a 3-5-day voluntary stay for “observation and treatment of depression.” (AR 522.) Upon discharge, Ms. Arellano's Cymbalta was adjusted based on reported side effects, she was started on prazosin to address reported nightmares, and she was scheduled for follow-up care with psychologist Dr. Robert Rinaldi, Ph.D. (AR 523-24.)

         Ms. Arellano began seeing Dr. Rinaldi on June 2, 2016. (AR 553-55.) She told Dr. Rinaldi that she had been abstinent from alcohol for eighteen months but had started drinking again after feeling very depressed which led to the incident that precipitated her hospitalization. (AR 553.) Ms. Arellano reported that she was planning to reinitiate therapeutic counseling with the therapist she had been treating with the year before. (AR 553, 629.) Dr. Rinaldi conducted a psychiatric diagnostic assessment and diagnosed Ms. Arellano with PTSD. (AR 554.) He indicated that he would continue to coordinate with Dr. Delgado to address Ms. Arellano's medication needs. (AR 555.) Also in June 2016, Ms. Arellano briefly reestablished with Andrea Serna, LPCC, at Hoy Recovery, the counselor she had seen in 2015.[3] (AR 621-29.) At that time, LPCC Serna diagnosed Ms. Arellano with PTSD and alcohol dependence and set goals for her to, inter alia, “[r]educe the significant impairment caused by PTSD” and help her “[r]eprocess trauma/abuse and resume adaptive functioning at home/school/work.” (AR 629, 632-33.)

         For the remainder of 2016 and into early 2017, Dr. Delgado continued treating Ms. Arellano's complaints of pain with narcotic pain medications and a muscle relaxant. (AR 658, 660, 663, 667, 669, 673, 797, 805, 808.) In August 2016, he agreed to increase her dose of oxycodone. (AR 659-60.) He and Dr. Rinaldi continued to coordinate treatment of her PTSD, prescribing and adjusting the doses of different antidepressants and even discussing the possibility of using medical cannabis to treat her PTSD symptoms. (AR 658, 661, 664, 667, 801, 802, 805, 808, 810-11.)

         After Ms. Arellano was late to an appointment and repeatedly used profanity with Dr. Delgado's staff, Dr. Delgado noted in his January 20, 2017 treatment note that he “may have to dismiss her as a patient based on this recurrent behavior.” (AR 796-97.) The administrative record contains no treatment records from Dr. Delgado after that date, but Ms. Arellano indicated in her “Recent Medical Treatment” form submitted to DDS on August 7, 2017 that she saw Dr. Delgado in February, March, and April 2017. (AR 343.)

         Ms. Arellano began seeing psychiatrist Stephanie Tucker, MD, on August 9, 2017. (AR 842.) After seeing Ms. Arellano twice, Dr. Tucker completed a Mental Residual Functional Capacity (MRFC) Questionnaire on August 22, 2017 in which she indicated her diagnoses of PTSD and depression and that she had started Ms. Arellano on a “new regimen of medications” to address those conditions. (AR 842, 846.) Based on her examination of Ms. Arellano, Dr. Tucker opined in the Questionnaire that Ms. Arellano was “unable to meet competitive standards” in three of the twenty-five areas of functioning assessed: (1) complete a normal workday and workweek without interruptions from psychologically based symptoms, (2) perform at a consistent pace, and (3) deal with normal work stress. (AR 844-45.) Dr. Tucker believed Ms. Arellano to be “seriously limited, but not precluded” in fifteen other areas of functioning and “limited but satisfactory” in the remaining seven areas. (Id.) In response to the question, “If your patient's impairments include alcohol or substance abuse, do alcohol or substance abuse contribute to any of your patient's limitations set forth above?” Dr. Tucker placed a checkmark next to, “No.” (AR 846.)

         At her hearing on September 7, 2017, Ms. Arellano testified that she “quit seeing the doctor that I've been seeing for about seven years”-presumably referring to Dr. Delgado-because “I just felt that my health issues and everything else, they just weren't giving me the full treatment I needed.” (AR 132-33.) She further testified that she was “starting to get back on all [her] medications” as of the month before. (AR 133.) She also informed the ALJ that she was scheduled to see a neurologist the next day and referred to Dr. Tucker as “the new doctor I'm seeing now.” (AR 133, 149.) Regarding her physical limitations, Ms. Arellano testified that she can walk for approximately ten minutes, stand for about five minutes, and sit for about twenty minutes at a time. (AR 136.) She uses a cane and usually wears braces on her knees. (AR 136-37.) She has chronic, sharp pain in her back and experiences pain levels of 9 out of 10 in her back and knees on a daily basis. (AR 138-39.) She tore her left rotator cuff in May 2016 and described herself as “still actually healing from” that injury. (AR 140.) Regarding her mental conditions, Ms. Arellano testified that her PTSD and anxiety are what caused her to stop working because she “was just unable to get to work” and “couldn't function at work.” (AR 131.) She described herself as having “a lot of depression” that prevents her from working because she “just break[s] out crying a lot[, ]” as much as six or eight hours a day. (AR 131-32.) She also described experiencing “flashbacks” and “severe nightmares” that result in her being unable to sleep more than two hours at night. (AR 134.) Regarding her daily activities, Ms. Arellano testified that she does not read, does not pay attention to the television even though it is always on, cannot dress herself or comb her hair without assistance from her husband or mother, no longer drives, and does not go grocery shopping. (AR 134, 141-42.) Regarding personal relationships, Mrs. Arellano explained that while she has friends, she does not associate with them and that the only people she talks to on the phone are her mother and daughter, whom she also sees once or twice a week. (AR 143-44.)

         C. The ALJ's Decision

         Although the ALJ found that Ms. Arellano has severe osteoarthritis, chronic knee pain, fibromyalgia, obesity, PTSD, anxiety, affective disorder, and polysubstance abuse, he found that the record did not support finding any of the foregoing impairments presumptively disabling. (AR 031-32.) He, therefore, proceeded to assess her residual functional capacity (“RFC”) to determine whether she could either return to her past relevant work or make an adjustment to other work. (AR 033-39.) See 20 C.F.R. § 404.1520(a)(4) (setting forth the five-step sequential evaluation process the SSA follows in evaluating DIB claims); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). The ALJ found that Ms. Arellano has the RFC to perform light work with certain exertional and nonexertional limitations. (AR 033.) Specifically, he found that Ms. Arellano

is capable of occasionally lifting and/or carrying 20 pounds, frequently lifting and/or carrying ten pounds, standing and/or walking for about six hours in an eight-hour workday, and sitting for about six hours in an eight-hour workday, all with normal breaks. She is further limited to occasionally climbing ramps, stairs, ladders, ropes, or scaffolds, frequently stooping, occasionally kneeling, frequently crouching, and occasionally crawling. [Ms. Arellano] can understand, carry out, and remember simple instructions and make commensurate work-related decisions, respond appropriately to supervision, coworkers, and work situations, deal with routine changes in work setting, maintain concentration[, ] persistence, and pace for up to and including two hours at a time with normal breaks throughout a normal workday. [Ms. Arellano] is limited to simple, routine, and repetitive tasks and is suitable for jobs involving work primarily with things and not people.

         (AR 033.)

         In discussing how he arrived at Ms. Arellano's RFC, the ALJ explained that he found that Ms. Arellano's “subjective complaints are out of proportion to and not supported by the objective medical evidence.” (AR 037.) Specifically, he found

[Ms. Arellano's] range of motion has been normal. I note that [Ms. Arellano] has an extensive history of polysubstance abuse. Moreover, she has not sought treatment for any impairment since January 2017. [Ms. Arellano] has previously reported that she prepares meals, does light housekeeping, does laundry, and does dishes. She indicated that she drives and shops in stores. She stated that she enjoyed watching television and socializing with her family. These activities of daily living are inconsistent with complaints of disabling pain.[4]

         (AR 036 (citations omitted).) Later in his analysis, the ALJ additionally found

[Ms. Arellano] has reported that she has no limitations in her activities of daily living and is capable of maintaining her household. She has indicated that she manages her finances and drives. She asserted that she has no difficultly making or keeping friends. She stated that she enjoys reading, is active and energetic, and likes games.[5]

         (AR 037 (citations omitted).)

         Regarding the medical opinions of record, the ALJ accorded “significant weight” to the opinions of the two non-examining state agency physicians who limited Ms. Arellano to “a less than light” physical RFC based on his finding that their opinions were “generally consistent with longitudinal medical records and [Ms. Arellano's] activities of daily living.” (AR 036.) He accorded “some weight” to the opinions of the two non-examining state agency psychological consultants, who opined that Ms. Arellano's mental impairments were “non-severe.” (AR 036-37.) He also accorded “some weight” to the opinion of Dr. Michael Gzaskow, a consultative examining psychiatrist whose November 2016 report to DDS provided:

1. [Ms. Arellano] can relate to others, but this is often compromised by her PTSD issues, depressive isolation and episodic anxiety.
2. She can understand directions in a structured/supportive environment but indicates she can no longer follow through in a productive manner due to her ...

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