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Ferguson v. Saul

United States District Court, D. New Mexico

September 3, 2019

PAULA A. FERGUSON, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court on Plaintiff's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 17), filed on March 28, 2019. 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. 4, 7, 8. Having considered the record, submissions of counsel, and relevant law, the Court finds Plaintiff's motion is not well-taken and will be denied.

         I. Procedural History

         On February 3, 2015, Ms. Paula A. Ferguson (“Plaintiff”) filed applications with the Social Security Administration for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act (“SSA”) and for Supplemental Security Income under Title XVI of the SSA. Administrative Record[2] (AR) at 182. Plaintiff alleged a disability onset date of August 23, 2012. AR at 182. Her DIB claim was denied because she had not worked long enough to be eligible for DIB, and Plaintiff did not seek reconsideration of that denial. AR at 105-07. As for her SSI application, Disability Determination Services determined that she was not disabled both initially (AR at 109) and on reconsideration (AR at 116). She then requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of her application. AR at 122-23.

         Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See AR at 31-79. ALJ Cole Gerstner issued an unfavorable decision on October 27, 2017. AR at 12-23. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council (AR at 179), which the Council denied on September 11, 2018 (AR at 1). Consequently, the ALJ's decision became the final decision of the Commissioner. 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. § 416.905(a). The Commissioner must use a five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 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 § 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” the claimant 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)); see also 20 C.F.R. § 416.920(a)(4)(v).

         At Step One of the process here, ALJ Gerstner found that Plaintiff “has not engaged in substantial gainful activity since February 3, 2015, the application date.” AR at 14 (citing 20 C.F.R. § 416.971). At Step Two, he concluded that Plaintiff had the following severe impairments: depression, anxiety, and degenerative disc disease. AR at 14 (citing 20 C.F.R. § 416.920). The ALJ also noted that there were “references to other isolated conditions, ” but he found that they did not impose more than a minimal restriction on Plaintiff's ability to perform basic work activities. AR at 14-15.

         At Step Three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR at 15 (citing 20 C.F.R. §§ 416.920(d), 416.925, 416.926). At Step Four, he found that while Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms[, ] . . . [her] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” AR at 17. After considering the evidence of record, the ALJ determined that Plaintiff:

ha[d] the residual functional capacity to perform light work as defined in 20 [C.F.R. §] 416.967(b) with further limitations as follows. The claimant is able to lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for a total of about six hours in an eight-hour workday; sit for a total of about six hours in an eight-hour workday; has unlimited pushing and/or pulling. She is limited to occasionally climbing ramps and stairs; occasionally climbing ladders, ropes and scaffolds; and occasional balancing, stooping, kneeling, crouching and crawling. She can occasionally work at unprotected heights and around moving mechanical parts. Mentally, she is limited to performing simple, routine and repetitive tasks. In addition to normal breaks, time off task includes ten percent of time in an eight-hour workday.

AR at 16. The ALJ determined that Plaintiff had “no past relevant work.” AR at 21. But, at Step Five, he concluded that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. AR at 22 (citing 20 C.F.R. §§ 416.969, 416.969(a)). Ultimately, the ALJ found that Plaintiff was not under a disability, as defined in the Social Security Act, from February 3, 2015, through the date of his decision. AR at 22 (citing 20 C.F.R. § 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)). 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). “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) (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 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). The Court “may not ‘displace the agenc[y's] choice between two fairly conflicting views, even though the [C]ourt would justifiably have made a different choice had the matter been before it de novo.'” Id. (quoting Zoltanski, 372 F.3d at 1200).

         IV. Discussion

         Plaintiff contends that the following issues require reversal: (1) the ALJ improperly weighed the opinion of evaluating neuropsychologist Dr. Koltuska-Haskin; (2) the ALJ's RFC is not supported by substantial evidence because Plaintiff's statements of pain were not considered in accordance with the dictates of Luna v. Bowen, 834 F.3d 161 (10th Cir. 1987), SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017), or SSR 96-8p, 1996 WL 374184 (July 2, 1996); and (3) the ALJ's Step-Five finding was not based on substantial evidence. Doc. 17 at 1.

         A. The ALJ properly weighed the opinion of evaluating neuropsychologist Dr. Barbara Koltuska-Haskin.

         First, Plaintiff maintains that ALJ Gerstner included only “a cursory discussion of the findings of Dr. Koltuska-Haskin, ” a consultative examining neuropsychologist. Doc. 17 at 12 (citing AR at 20). She characterizes the ALJ's discussion of Dr. Koltuska-Haskin's opinion as “a fragment of an in-depth opinion based on an extensive evaluation including multiple tests.” Id. (citing AR at 20, 724-31). Acknowledging that the ALJ gave Dr. Koltuska-Haskin's opinion only “partial weight, ” Plaintiff submits that it is “unclear to what, exactly, he was assigning the weight.” Id. at 13 n.8, 15 (citing AR at 20). Specifically, Plaintiff identifies certain opinions of Dr. Koltuska-Haskin, which she insists the ALJ omitted: her opinion that Plaintiff's “overall clinical presentation indicates some cognitive problems primarily in the areas of executive functioning, attention/ concentration and nonverbal processing speed” and her opinion that “there is Chronic and ...


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