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Ortega v. Saul

United States District Court, D. New Mexico

November 19, 2019

RUPERT J. ORTEGA, 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 Rupert J. Ortega's (“Mr. Ortega”) Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 16) (“Motion”), filed March 19, 2019, seeking review of the unfavorable decision of Defendant Andrew Saul, Commissioner of the Social Security Administration (“Commissioner”), on Mr. Ortega'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 May 29, 2019, (Doc. 19), and Mr. Ortega filed a reply in support of the Motion on June 18, 2019. (Doc. 20.) Having meticulously reviewed the entire record and the applicable law and being otherwise fully advised in the premises, the Court FINDS that Mr. Ortega's Motion is well taken and should be GRANTED.

         I. Background

         A. Procedural History

         On March 24, 2014, Mr. Ortega 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”) 067.) He alleged a disability onset date of March 25, 2012 and that he was suffering from, inter alia, arthritis and carpal tunnel syndrome. (AR 068-69.) Disability Determination Services (“DDS”) determined that Mr. Ortega was not disabled both initially (AR 096) and on reconsideration. (AR 102.) Mr. Ortega requested a hearing with an Administrative Law Judge (“ALJ”) on the merits of his application. (AR 107.)

         ALJ Lillian Richter held a hearing on June 13, 2017. (AR 035-66.) Mr. Ortega and Vocational Expert (VE) Sandra Trost testified. (Id.) ALJ Richter issued an unfavorable decision on December 8, 2017. (AR 010-29.) The Appeals Council denied Mr. Ortega's request for review on September 24, 2018 (AR 001-4), making the ALJ's decision the final decision of the Commissioner from which Mr. Ortega appeals. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).

         B. Mr. Ortega's Background, Medical Treatment, and Hearing Testimony

         Mr. Ortega is a high school graduate who worked as an auto mechanic for thirty years. (AR 039-41.) In September 2011, he began seeing Dr. Matthew Patton at New Mexico Orthopaedics for treatment of a right-long-finger injury he sustained in a March 2011 motorcycle accident. (AR 271-72.) Dr. Patton diagnosed Mr. Ortega with right long finger metacarpophalangeal (“MCP”) joint arthritis with traumatic exacerbation and treated him with an injection of Kenalog and Marcaine. (AR 271-72.) At that time, Dr. Patton noted “fairly advanced joint space narrowing at the third MCP joint.” (AR 271-72.) When Mr. Ortega established with Dr. Don Ortiz at Midtown Family Medical in April 2012, he reported experiencing “chronic [right] wrist pain” but received no treatment for that condition at that time. (AR 325.) When Mr. Ortega complained of intermittent pain and mild swelling in his right wrist at a visit in December 2013, Dr. Ortiz ordered x-rays, suspecting osteoarthritis. (AR. 327.) The December 2013 x-rays found “[m]inimal degenerative changes in the triscaphe joint” but no other remarkable findings. (AR 320.)

         Mr. Ortega returned to Dr. Patton in February 2014 following an injury he sustained to his left small finger in January 2014 while unloading car parts. (AR 249, 328.) He complained of “bilateral dorsal wrist pain[] and weakness” as well as right long finger MCP joint pain and left small finger joint swelling. (AR 249.) Dr. Patton diagnosed Mr. Ortega with bilateral possible carpal tunnel syndrome, bilateral wrist pain (wrist joint), and bilateral wrist ulnar impaction syndrome (right worse than left). (AR 250.) He noted that Mr. Ortega described his pain as being “worse with activities[, ]” specifically bearing weight, grasping, walking, movement of area, exercise, opening lids, and[] lifting[, ]” and gave Mr. Ortega wrist splints to be used at night. (AR 249-51.) He also ordered a nerve conduction study and electromyography test to confirm possible carpal tunnel syndrome. (AR 250-51.)

         Following testing, Mr. Ortega was diagnosed with bilateral carpal tunnel syndrome in March 2014. (AR 245, 248.) At the time of diagnosis, Dr. Patton noted that Mr. Ortega's symptoms “are not severe” and that he “is able to do light and moderate activity without too much difficulty.” However, he also noted that Mr. Ortega reported experiencing “more pain and numbness and tingling” with “heavy twisting type activities” and that Mr. Ortega's symptoms made it “very difficult” to do his previous work as a mechanic. (AR 245.) He prescribed the use of elbow pads to address Mr. Ortega's complaint of positional ulnar nerve irritation while sleeping, noted that surgery was an option if Mr. Ortega's symptoms worsened, and advised Mr. Ortega to return for treatment as needed. (AR 245.)

         Mr. Ortega again sought treatment from Dr. Ortiz for his hand and wrist pain in April 2016. (AR 330.) Dr. Ortiz prescribed Mr. Ortega etodolac for pain management and referred him to Academy Orthopedics to follow up on his complaint of chronic right wrist pain.[2] (AR 330.) In November 2016, Mr. Ortega was seen at New Mexico Cancer Center for a rheumatology consultation on referral of Dr. Ortiz. (AR 335.) Following lab testing and x-rays, Dr. James Steier diagnosed Mr. Ortega with primary osteoarthritis of the right hand and right wrist. (AR 335-38.) He noted “synovial thickening on the bilateral wrists, right greater than left, with some loss of range of motion on extension and flexion” and treated Mr. Ortega with a local cortisone shot to the right wrist and right third MCP joint “for symptomatic relief of pain.” (AR 340.) In January 2017, Mr. Ortega was seen at Jaynes Companies Healthcare Clinic and prescribed meloxicam to treat what was diagnosed as “other chronic pain” and “pain in unspecified joint.” (AR 358-59.) At a follow-up visit in April 2017, his meloxicam prescription was refilled. (AR 355-56.)

         On April 10, 2017, Mr. Ortega was evaluated at Spine Solutions for occupational therapy services to address his “[l]imited functional use of [both] hands for [activities of daily living]/household tasks” due to pain in both hands and in his right wrist.[3] (AR 381-83.) The evaluator documented Mr. Ortega's pain as being “progressive” and noted that Mr. Ortega reported that he “[f]eels [w]orse” when doing things like wringing out a rag, using hand tools, lifting a gallon of milk, lifting a vacuum cleaner, and holding anything that vibrates. (AR 381.) While certain of his ranges of motion in his wrists were assessed as being below normal or at the low end of normal, the evaluator indicated that his active range of motion in his hands was “W[ithin] F[unctional] L[imits].” (AR 382.) At his initial visit, Mr. Ortega received laser treatment and instructions for a home exercise program, the goal of which was to increase his ability to independently perform household tasks and lifting. (AR 381-82.) Mr. Ortega continued to be seen weekly at Spine Solutions until May 24, 2017 when he was discharged upon successful completion of his therapeutic program. (AR 384-399.) At each of his other five therapy sessions, Mr. Ortega received self-care advice, i.e., instructions for his home exercise program, manual therapy, and cold laser treatment to his wrists for management of his symptoms. (AR 384, 386, 388, 390, 392.) While he reported some improvement in his symptoms overall, he also reported experiencing an “ongoing problem” with swelling in his hands “after extended time working with them on [a] car or in [the] yard.” (AR 386, 390, 392.) To address the problem of swelling, Mr. Ortega was advised how to modify his activities in order to reduce his symptoms. (AR 386.) At his pre-discharge reevaluation, Mr. Ortega reported that he continued to experience intermittent and occasional symptoms and felt that there had been “minimal change . . . with therapy.” (AR 392.) His ranges of motion were recorded as being “mostly the same” as prior to occupational therapy with only his range of motion in his thumbs having improved. (AR 392.)

         At his hearing before ALJ Richter in June 2017, Mr. Ortega testified that he has difficulty opening jar lids, twisting a washrag, picking up the vacuum cleaner, putting his hands in his pockets, combing his hair, and brushing his teeth. (AR 043.) He explained that he wears wrist splints to limit the range of motion in his wrists because “the pain kicks in” as his range of motion increases. (AR 042.) And while he continued to practice the exercises and stretches that he learned at Spine Solutions, he reported being able to lift only a small amount-around one pound-with his right hand without triggering pain. (AR 042-43.) He additionally testified that while he does do some yard work, he does “[a]s little as possible” and only things such as “pick up a stick here and there[, ]” turn on the water pump, and “move the garden hose here and there[.]” (AR 059.) And though he owns a motorcycle, he explained that he rides it infrequently and when he does, he travels only short distances and drives with his hand crossed over in order to operate the throttle. (AR 058.)

         C. Opinion Evidence

         In January 2015, non-examining State agency physician Dr. Ronald Davis found at the initial level that Mr. Ortega suffered from two severe, medically determinable impairments: (1) dysfunction of major joints, and (2) fracture(s) of the upper extremities. (AR 072.) He opined that Mr. Ortega was able to perform light work without any manipulative limitations and with only minimal postural limitations, to wit, occasional stooping and crouching but no other postural limitations. (AR 073-75.) At the reconsideration level in July 2015, Mr. Ortega was determined to additionally suffer from the severe, medically determinable impairment of carpal tunnel syndrome. (AR 085.) Like Dr. Davis, non-examining State agency physician Dr. M. Bijpuria found that Mr. Ortega is limited to light work; however, unlike Dr. Davis, who found that Mr. Ortega has no manipulative limitations, Dr. Bijpuria found that Mr. Ortega's gross manipulation (i.e., ability to handle) was “limited to occasionally” in his right upper extremity due to his carpal tunnel syndrome and arthropathy. (AR 089.) He also assessed a greater number of postural limitations than Dr. Davis. While he agreed with Dr. Davis that Mr. Ortega was limited to occasional stooping and crouching, he opined that Mr. Ortega was also limited to occasional balancing, kneeling, and crawling, and could frequently climb ramps and stairs.[4] (AR 088-89.)

         D. The VE's Testimony and the ALJ's Decision

         At the administrative hearing, the ALJ presented VE Trost with a hypothetical residual functional capacity (“RFC”) assessment that limited Mr. Ortega to light work with certain postural, manipulative, and mental limitations. (AR 064.) In relevant part, the ALJ's hypothetical RFC included a manipulative limitation providing that Mr. Ortega “can frequently handle, finger and feel bilaterally.” (AR 064.) VE Trost testified that given the ALJ's hypothetical RFC, Mr. Ortega could not perform his past relevant work but that there exist other jobs in the national economy that he could perform, including marker, photocopy machine operator, and office helper. (AR 064-65.) When presented with the ALJ's alternative hypothetical RFC limiting Mr. Ortega to occasional, rather than frequent, handling and feeling with his right upper extremity, VE Trost testified that the identified jobs would be eliminated and that no other work existed that Mr. Ortega could perform. (AR 065.)

         In her decision, the ALJ found that Mr. Ortega's “severe impairments” include mononeuritis carpal tunnel syndrome and mild osteoarthritis of the right hand and wrist but that the record did not support finding any of Mr. Ortega's “severe impairments” presumptively disabling.[5] (AR 015-18.) She, therefore, proceeded to assess Mr. Ortega's RFC to determine whether he could either return to his past relevant work or make an adjustment to other work. (AR 016-27.) 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 assessed Mr. Ortega as having the RFC to perform “a limited range of light work . . . except that he can frequently climb ramps and stairs, never climb ladders, ropes, or scaffolds, and never crawl.” (AR 018.) She further found that he “can occasionally balance, stoop, kneel, and crouch” and that he can “frequently handle, finger, and feel bilaterally.”[6] (AR 018.) Although she found him unable to perform his past ...


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