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Montoya v. Saul

United States District Court, D. New Mexico

November 20, 2019

YVETTE MONTOYA, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on plaintiff Yvette Montoya's Motion to Reverse and Remand for a Rehearing with Supporting Memorandum (Doc. 21), which was fully briefed on June 13, 2019. See Docs. 24, 27, 28. The parties consented to my entering final judgment in this case. Docs. 4, 7, 8. Having meticulously reviewed the entire record and being fully advised in the premises, I find that the Administrative Law Judge's (“ALJ”) decision to give treating physician Dr. Santos's opinion “limited weight” is not supported by substantial evidence. I therefore GRANT Ms. Montoya's motion and remand this case to the Commissioner for further proceedings consistent with this opinion.

         I. Standard of Review

         The standard of review in a Social Security appeal is whether the Commissioner's final decision[2] is supported by substantial evidence and whether the correct legal standards were applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports the Commissioner's findings and the correct legal standards were applied, the Commissioner's decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal quotation marks and brackets omitted). The Court must meticulously review the entire record, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).

         “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the issues de novo, its examination of the record as a whole must include “anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “‘The possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence.'” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).

         II. Applicable Law and Sequential Evaluation Process

         To qualify for disability benefits, a claimant must establish that he or 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); 20 C.F.R. §§ 404.1505(a), 416.905(a).

         When considering a disability application, the Commissioner is required to use a five-step sequential evaluation process. 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the evaluation process, the claimant must show: (1) the claimant is not engaged in “substantial gainful activity;” (2) the claimant 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) the impairment(s) either meet or equal one of the Listings[3] of presumptively disabling impairments; or (4) the claimant is unable to perform his or her “past relevant work.” 20 C.F.R. §§ 404.1520(a)(4)(i-iv), 416.920(a)(4)(i-iv); Grogan, 399 F.3d at 1261. If the claimant cannot show that his or her impairment meets or equals a Listing but proves that he or she is unable to perform his or her “past relevant work, ” the burden then shifts to the Commissioner, at step five, to show that the claimant is able to perform other work in the national economy, considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         III. Background and Procedural History

         Ms. Montoya was born in 1958 and graduated from high school in 1976. AR 230, 235.[4]She worked for many years in the electronics assembly industry. AR 236, 652-58, 668-77. Ms. Montoya filed applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) on February 19, 2013, alleging disability since August 26, 2012 due to the following impairments: numbness in her right back, right buttock, right calf and right toes; injuries to her lower and upper back and right buttocks, right hand weakness and pain, right-sided carpal tunnel syndrome, right finger pain, trigger finger on the right hand, pinched nerve in the right shoulder; inability to sit, stand, or walk for more than 10 minutes at a time; inability to carry objects weighing more than 10 pounds, and inability to drive without pain. AR 187-99, 234. The Social Security Administration (“SSA”) denied her claims initially on August 9, 2013. AR 124-28. The SSA denied her claims on reconsideration on October 28, 2013. AR 131-35. Ms. Montoya requested a hearing before an ALJ. AR 136-37. On March 19, 2015, ALJ Eric Weiss held a hearing. AR 26-75. ALJ Weiss issued his unfavorable decision on April 29, 2015. AR 9-25. Ms. Montoya requested review of the ALJ's unfavorable decision by the Appeals Council. AR 5-8. On September 1, 2016, the Appeals Council denied the request for review. AR 1-4.

         Ms. Montoya timely filed her first appeal to this Court on November 4, 2016.[5] AR 706- 07 (Montoya v. Berryhill, No. 16cv1214 KBM, Doc. 1 (D.N.M. Nov. 4, 2016)). On September 22, 2017, the Commissioner moved for a remand pursuant to sentence four of 42 U.S.C. § 405(g), which the Court granted. No. 16cv1214 KBM, Docs. 26, 27. On remand, the Appeals Council vacated the final decision of the Commissioner and remanded to the ALJ for “[f]urther evaluation of the opinion of treating source James Santos, M.D.” AR 763.

Specifically, the Administrative Law Judge stated that Dr. Santos's opinion was “less persuasive” than the opinions of consultative examiner Raul Young-Rodriguez, M.D. and the State agency medical consultants because Dr. Santos's opinion “contrasts sharply” with the other evidence of record and the other medical opinions (Decision, page 8). However, the decision does not reflect consideration of significant countervailing evidence in Dr. Santos's treatment records contained at Exhibit 10F, including a July 2014 cervical spine MRI showing moderate disc degeneration at ¶ 5-6 with loss of disc height and a right paracentral and interforaminal disc extrusion that results in moderate right foraminal stenosis, with a central annular tear at this level, and an EMG/NCS study from February 2013 that showed mild right median mononeuropathy at the wrist and demyelinating features affecting the sensory fibers (Exhibit 10F, pages 15 and 17). Consultative examiner Dr. Young-Rodriguez and the State agency medical consultants did not review the treatment records from Dr. Santos; their opinions were provided prior to the submission of Dr. Santos's treatment records and prior to the claimant's July 2014 cervical spine MRI described above. In addition, in evaluating the opinion of Dr. Santos, the hearing decision does not address those factors discussed at 20 CFR 404.1527(c) and 416.927(c) for evaluating opinion evidence nor does it contain any specific references to the evidence of record to support the weight assigned to Dr. Santos's opinion. Thus, further evaluation, pursuant to 20 CFR 404.1527 and 416.927, is warranted.

AR 763-64.

         After remand from the Appeals Council, on April 12, 2018, ALJ Weiss held a second hearing. AR 648-82. On May 4, 2018, the ALJ issued a partially favorable decision-finding Ms. Montoya disabled from June 17, 2015 forward, but not disabled prior to that date. AR 616-47.

         The ALJ found that Ms. Montoya met the insured requirements of the Social Security Act through December 31, 2016. AR 624. At step one, the ALJ found that Ms. Montoya had not engaged in substantial, gainful activity since August 21, 2012, her alleged onset date. Id. At step two, the ALJ found that Ms. Montoya suffered from the following severe impairments: “[o]steoarthrosis; degenerative disc disease; cervical spondylosis; cervicalgia, cervical radiculopathy; carpal tunnel syndrome, facet syndrome; lumbago; right trigger finger, thoracic outlet syndrome; and right AC joint arthropathy.” Id. Beginning on June 17, 2015, the date the ALJ found Ms. Montoya disabled, the ALJ found that, in addition to all the above severe impairments, Ms. Montoya also had “left cubital tunnel syndrome status post open ulnar nerve decompression; and left shoulder osteoarthritis status post left shoulder replacement.” Id.

         At step three, the ALJ found that none of Ms. Montoya's impairments, alone or in combination, met or medically equaled a Listing. AR 625-27. Because the ALJ found that none of the impairments met a Listing, the ALJ assessed Ms. Montoya's RFCs. AR 627-37. Prior to June 17, 2015, the ALJ found Ms. Montoya had the RFC to

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant could lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently. She was able to stand or walk for six hours per eight-hour day and sit for six hours per eight-hour day with normally scheduled breaks. She could occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds. The claimant was able to occasionally balance, stoop, crouch, and kneel, but could never crawl. She was able to frequently reach, handle, and finger with her upper extremities. She had to avoid more than occasional exposure to unprotected heights.

AR 627. Beginning on June 17, 2015, the ALJ found Ms. Montoya had the RFC to

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she can lift up to 10 pounds occasionally. She can stand or walk for two hours per eight-hour day and sit for six hours per eight-hour day with normally scheduled breaks. The claimant is able to occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds. She is able to occasionally balance, stoop, crouch, and kneel, but never crawl. The claimant can occasionally reach, handle, and finger with her bilateral upper extremities. She must avoid exposure to unprotected heights, dangerous moving machinery, and pulmonary irritants such as dust, fumes, odors, and gasses.

AR 634-35.

         At step four, the ALJ concluded that, prior to June 17, 2015, Ms. Montoya was capable of performing her past relevant work as an “electronics assembler” and as a “production expeditor” as that work is generally performed. AR 637-38. Because she could perform her past relevant work, the ALJ concluded that she was not disabled prior to June 17, 2015. AR 638. Beginning on June 17, 2015, the ALJ found that Ms. Montoya could not perform her past relevant work. Id. At step five, for the period beginning on June 17, 2015, the ALJ found that considering Ms. Montoya's age, education, work experience and RFC, there were no jobs that exist in significant numbers that Ms. Montoya could perform. Id. The ALJ therefore found Ms. Montoya disabled beginning on June 17, 2015. Id. Ms. Montoya timely filed her appeal to this Court on August 31, 2018. Doc. 1.[6]

         IV. Ms. Montoya's Claims

         Ms. Montoya raises two arguments for reversing and remanding this case: (1) the ALJ erred in weighing the opinion of treating physician Dr. James Santos; (2) the RFC is not supported by substantial evidence because the ALJ failed to account for Ms. Montoya's subjective allegations of pain and other symptoms. See Doc. 21. Because I remand based on the ALJ's failure to properly weigh the opinion of Dr. Santos, I do not address the other alleged error, which “may be affected the ALJ's treatment of this case on remand.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         A. Summary of Dr. Santos's Treatment Records

         Dr. James Santos, a doctor board-certified in physical medicine and rehabilitation, [7]treated Ms. Montoya more than twenty times between August 2013 and May 2015. See AR 380-83, 391-92, 405-09, 432-43, 447-50, 457-60, 465-68, 479-88, 495-97, 502-03, 509-10, 522-23, 536-37, 590-91, 600-04, 606-08, 612-15, 1162-63.

         On August 23, 2013, Ms. Montoya saw Dr. Santos for an initial exam. AR 380-83. Ms. Montoya reported low back pain, present for more than one year, which resulted in the inability to stand for more than 30 minutes at a time and a pain level of 7 out of 10, with pain made worse by activities. AR 380. Ms. Montoya also reported “neck pain, joint pain, joint swelling, back pain, ” and a weak right hand and arm that became sore with use. Id. On lumbar exam, Dr. Santos noted that Ms. Montoya had “[t]enderness to palpation” of the “right buttocks” but no other significant findings. AR 382. Dr. Santos reviewed an MRI done by High Resolution in September of 2012 and noted that it showed the following:

Multileval moderate disc degeneration from L2-3 through L5-S1. There is a left paracentral disc protrusion with an annular tear at ¶ 5-S1. There is a far left disc protrusion an[d] annular tear noted at ¶ 4-5. There is a small left paracentral disc protrusion at ¶ 2-3 with annular tear. There is moderate facet joint arthropathy L4-5 with effusions.

Id. Dr. Santos diagnosed Ms. Montoya with “persistent axial lumbar pain in the setting of multilevel disc degeneration with annular tears at ¶ 2-3, L4-5, and L5-S1 and facet joint arthropathy most pronounced at ¶ 4-5.” AR 383. Dr. Santos opined that the “[e]tiologies of the axial pain could include: discogenic pain, facet syndrome, or sacroiliac joint dysfunction.” Id. Dr. Santos noted that Ms. Montoya reported that she received “about a 90% reduction in her pain levels following physical therapy, but her residual pain still affects her quality of life” and limits her functional activities.[8] AR 383, 405. Ms. Montoya “agreed to undergo a diagnostic[9] and therapeutic facet joint injections [left] laterally at ¶ 4-5 and L5-S1.” AR 383.

         On September 9, 2013, Dr. Santos performed a diagnostic and therapeutic right L4-5 and left L4-5 facet block. AR 391-92. On November 14, 2013, Ms. Montoya reported a 60% reduction in her low back pain following the facet joint injections. AR 495. She reported a current pain level of 6 out of 10, continued numbness, pain with activities, radiating pain, and night pain. Id. She reported “constant pain” and pain when “trying to do anything.” Id. On lumbar exam, Dr. Santos found a limited range of motion due to pain, and decreased extension. AR 496. Dr. Santos assessed Ms. Montoya with “moderately improved, persistent axial lumbar pain in the setting of multilevel disc degeneration and annular tears and facet joint arthropathy, most pronounced at ¶ 4-5.” AR 497. He scheduled Ms. Montoya for repeat bilateral L4-5 facet joint injections. Id.

         On November 25, 2013, Dr. Santos performed diagnostic and therapeutic bilateral L4-5 facet joint injections AR 502-03. On January 7, 2014, Ms. Montoya reported a 60% pain reduction in pain following the facet joint injections but reported a current pain level of 8 out of 10, and that she continued to have pain with activities, radiating pain, and night pain. AR 486. She reported that “the injection only helps when she isn't doing anything.” Id. Dr. Santos scheduled Ms. Montoya for a medial branch block[10] of the L4-5 facet joints bilaterally. AR 488.

         On January 27, 2014, Dr. Santos performed a diagnostic right L4-5 and left L4-5 facet block via injection of right L3, left L3, right L4 and left L4 medial branch nerves. AR 509. On February 19, 2014, Ms. Montoya reported a 20 to 30% reduction in pain for the six hours following the injection, with some relief from pain lasting two days after the facet block injection. AR 483. She reported a current pain level of 7 out of 10. Id. Dr. Santos assessed Ms. Montoya with “transiently improved axial lumbar pain after her intra-articular steroid injections within the facet joints in the setting of spondylosis.” AR 485. Because Ms. Montoya had an “atypical response” to the facet block injection, Dr. Santos decided to repeat the procedure and “add one level.” Id. Dr. Santos scheduled Ms. Montoya for a “medial branch block on the L4-5 and L5-S1 facet joints” that would “effectively block the bilateral L3 and L4 medial branches and bilateral L4 dorsal primary rami.” Id.

         On February 24, 2014, Dr. Santos performed a diagnostic right L4-5, left L4-5, right L5-S1, and left L5-S1 facet block via injection of the right L3, left L3, right L4 and left L4 medial branch nerves and right L5 and left L5 dorsal rami. AR 522.

         On February 27, 2014, Ms. Montoya reported pain localized bilaterally along the upper and inner parascapular region. AR 479. On physical exam, Dr. Santos noted pain/tenderness when he palpated the trigger points of the bilateral trapezius, levator scapula, and rhomboids. AR 482. Dr. Santos ordered thoracic x-rays, which showed mild scoliosis. Id. Dr. Santos diagnosed Ms. Montoya with “chronic upper thoracic axial pain with clinical evidence of extensive myofascial spasms.” Id.

         On March 25, 2014, Ms. Montoya was seen for follow up after the February 24, 2014 facet injections. AR 465. Ms. Montoya reported a pain level of 7 out of 10 and pain with activities, with symptoms unchanged from her previous visit. Id. She reported an 80 to 90% pain reduction of her lower back pain for approximately 6 hours after the facet block injections, but also reported some numbness and tingling in her legs after the injections. AR 465, 520. Dr. Santos noted that Ms. Montoya had “chronic paresthesias in her right leg.” AR 465. Dr. Santos assessed Ms. Montoya with “axial lumbar pain secondary to facet syndrome at ¶ 4-5 and L5-S1 in the setting of spondylosis.” AR 467. Dr. Santos noted that Ms. Montoya had “a positive response to the last medial branch block, but she is concerned that the radiofrequency right rhizotomy[11] would cause leg symptoms. After a long discussion with the patient, we have agreed to have her return for a repeat set of medial branch blocks and determine whether she experiences the same symptoms in her legs.” Id.

         On March 31, 2014, Dr. Santos performed a diagnostic right L4-5, left L4-5, right L5-S1 and left L5-S1 facet block injection via injection of the right L3, left L3, right L4 and left L4 medial branch nerves and right L5 and left L5 dorsal rami. AR 536. On April 16, 2014, Ms. Montoya reported a pain level of 8 out of 10, pain with activities, and symptoms unchanged since her last visit. AR 447. Ms. Montoya reported 100% relief of her back pain for the 6 hours that she recorded her pain after the March 31, 2014 facet block injections. Id. Dr. Santos assessed her with “axial lumbar pain secondary to facet syndrome at ¶ 4-5 and L5-S1 in the setting of spondylosis.” AR 450. Noting that Ms. Montoya had two positive responses to medial branch blocks, Dr. Santos scheduled Ms. Montoya for bilateral radiofrequency rhizotomy at ¶ 3, L4, and L5. Id.

         On April 29, 2014 Ms. Montoya reported a pain level of 8 out of 10, and pain with activities. AR 441. She reported that her pain had worsened since her last visit. Id. Ms. Montoya complained of upper thoracic and scapular pain. Id. Dr. Santos assessed Ms. Montoya with “chronic upper thoracic axial pain with clinical evidence of myofascial spasms, ” administered trigger ...


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