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Ortega v. Saul

United States District Court, D. New Mexico

October 8, 2019

CHRISTOPHER ANTON ORTEGA, 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 Rehearing with Supporting Memorandum (Doc. 20), filed May 15, 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; 11. Having considered the record, submissions of counsel, and the relevant law, the Court finds Plaintiff's motion is well-taken in part and will be granted.

         I. Procedural History

         On January 6, 2015, Christopher Anton Ortega (“Plaintiff”) filed an application with the Social Security Administration for supplemental security income (“SSI”) under Title XVI of the Social Security Act. Administrative Record[2] (AR) at 237. Plaintiff alleged a disability onset date of October 31, 2014. AR at 237. Disability Determination Services (“DDS”) determined that Plaintiff was not disabled both initially (AR at 89, 95) and on reconsideration (AR at 97, 106). Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his applications. AR at 128.

         On May 31, 2017, ALJ Cole Gerstner held a hearing at which Plaintiff and a vocational expert (“VE”) testified. See AR at 37-78. The ALJ issued an unfavorable decision on December 15, 2017. AR at 28. Plaintiff submitted a Request for Review of Hearing Decision/Order to the Appeals Council, which the Council denied on September 19, 2018. AR at 7. Consequently, the ALJ's decision became the final decision of the Commissioner. See 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 he 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) he is not engaged in “substantial gainful activity”; (2) he 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) his 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”), he is unable to perform his 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 [his] 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)). 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” Plaintiff retains sufficient RFC “to perform work in the national economy, given his 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).

         Here, at Step One of the process, the ALJ determined that Plaintiff “ha[d] not engaged in substantial gainful activity (‘SGA') since January 2, 2015, the application date.” AR at 22 (citing 20 C.F.R. §§ 416.971-976). At Step Two, he concluded that Plaintiff had the following severe impairments: “gastrointestinal disorders secondary to pancreatitis, peripheral neuropathy, and cardiac arrhythmias with pacemaker.” AR at 22 (citing 20 C.F.R. § 416.920(c)). The ALJ indicated that Plaintiff's mental impairments of depression and alcoholism in remission were non-severe, as they did “not cause more than minimal limitation in [his] ability to perform basic mental work activities.” AR at 22.

         At Step Three, the ALJ found that Plaintiff did “not have an impairment or combination of impairments that [met] or medically equal[ed] the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1.” AR at 23 (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, ” his “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 26. Considering the evidence of record, he found as follows:

[Plaintiff] has the [RFC] to occasionally lift 20 pounds and . . . frequently lift or carry up to 10 pounds. The claimant is able to stand and walk for approximately four hours in an eight-hour workday and sit for six hours in an eight-hour workday. He can occasionally operate foot controls with each foot. He can occasionally balance, stoop, kneel, crouch, crawl and climb ladders, ropes, scaffolds[, ] ramps or stairs. He can occasionally work around unprotected heights and moving mechanical parts. The claimant is limited to simple, routine tasks. I find that this is a limited range of work contained in the sedentary exertional level as defined by 20 [C.F.R. §] . . . 416.967 and SSR 83-10.

AR at 23. The ALJ went on to find that Plaintiff was “unable to perform any past relevant work.” AR at 27 (citing 20 C.F.R. § 416.965). But at Step Five, he found that “[c]onsidering [Plaintiff's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [he] can perform.” AR at 27 (citing 20 C.F.R. §§ 416.969, 416.969(a)). More particularly, the ALJ found Plaintiff able to perform the positions of Callout Operator (DOT Code 237.360-014), Addresser (DOT Code 209.587-010), and Food Clerk (DOT Code 209.567-014). Consequently, the ALJ determined that Plaintiff had not been under a disability from January 2, 2015, through the date of his application. AR at 28 (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)). 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 court 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 argues that the ALJ failed to properly include all of his limitations in the RFC and that he committed additional errors at Step Five of his evaluation. More specifically, he contends that the ALJ improperly assessed the effects of his peripheral neuropathy and pancreatitis, improperly rejected Dr. Bocian's opinions and disregarded certain of Dr. Quinlan's opinions, improperly assessed Plaintiff's subjective symptoms, and failed to clarify inconsistent vocational testimony regarding the jobs that Plaintiff could perform and his RFC finding. Doc. 20 at 10-22.

         A. The ALJ properly assessed the effects of Plaintiff's peripheral neuropathy.

         At the May 31, 2017 hearing before the ALJ, Plaintiff identified neuropathy in feet as his most significant problem. AR at 49. He explained that he began experiencing pain, numbness, and tingling in his feet while he was hospitalized in 2015. AR at 534-35. He testified that, because of the neuropathy, he was only able to walk for 15-20 minutes and stand for 30-45 minutes at a time. AR at 49. Yet, the ALJ determined that Plaintiff was able to stand and walk for approximately four hours in an eight-hour workday and to occasionally operate foot controls with each foot. AR at 23. Plaintiff maintains that such a finding was error.

         The ALJ described Plaintiff's neuropathy as “somewhat ambiguous, ” concluding that the “functional limitations described by [Plaintiff were] not supported.” AR at 26. He noted that Pamela Black, M.D. of Quadra Health Institute had attributed Plaintiff's neuropathy to excessive alcohol use but had not offered a prognosis or discussed a cure. AR at 26. According to the ALJ, there was “reason to think [the neuropathy] may improve with continued abstinence from alcohol, ” but that, regardless, the pain was “described as mild, particularly in response to gabapentin.” AR at 26. The ALJ emphasized that Plaintiff's “gait is normal without need for an assistive device” and was “not consistent with disability.” AR at 26. The ALJ noted that Plaintiff's condition allowed him to “coach[] his son's football team in January 2016, run[] a Lobo's training camp in June[, ] and coach[] basketball in 2017.” AR at 26 (citing AR at 676, 698, 805). According to the ALJ these activities by Plaintiff “prove a great deal of exertional ability.” AR at 26. ...


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