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Herrera v. Saul

United States District Court, D. New Mexico

December 2, 2019

CINDY M. HERRERA, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, [1]Defendant.



         THIS MATTER is before the Court on the Social Security Administrative Record (Doc. 17) filed January 23, 2019, in support of Plaintiff Cindy M. Herrera's Complaint (Doc. 1) seeking review of the decision of Defendant Andrew Saul, Commissioner of the Social Security Administration, denying Plaintiff's claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. On April 1, 2019, Plaintiff filed her Motion to Reverse and Remand for a Rehearing With Supporting Memorandum. Doc. 18. The Commissioner filed a Response on May 30, 2019 (Doc. 20), and Plaintiff filed a Reply on July 17, 2019 (Doc. 23). The Court has jurisdiction to review the Commissioner's final decision under 42 U.S.C. §§ 405(g) and 1383(c). Having meticulously reviewed the entire record and the applicable law and being fully advised in the premises, the Court finds the Motion is not well taken and is DENIED.

         Background and Procedural Record

         Claimant Cindy M. Herrera suffers from the following severe impairments: post-traumatic stress disorder (“PTSD”), panic disorder without agoraphobia; major depressive disorder; borderline personality disorder; generalized anxiety disorder; phobias; fibromyalgia; asthma; chronic pain syndrome; lumbar radiculopathy, cervical stenosis, and sacrodynia. Administrative Record (“AR”) at 125. She has a high school diploma and attended a few weeks of community college. AR 189-90, 592. She has past relevant work as a bookkeeper and cashier. AR 198, 243.

         On May 20, 2013, Ms. Herrera filed concurrent claims of disability under Title II and Title XVI of the Social Security Act. AR 250, 353. She alleges that she became disabled as of November 1, 2006. AR 353. Her applications were denied on October 23, 2013 (AR 314-15), and upon reconsideration on June 10, 2014 (AR 348-49). Administrative Law Judge (“ALJ”) Kim Fields conducted a hearing on February 10, 2016. AR 188-201. Ms. Herrera appeared in person at the hearing with attorney representative Michael Armstrong. Id. The ALJ took testimony from Ms. Herrera; Richard Adams, MD, Medical Expert; and Charles Edward Smith, Vocational Expert (“VE”). AR 178.

         On March 25, 2016, ALJ Fields issued an unfavorable decision. AR 353-66. On April 27, 2017, the Appeals Council issued a decision granting Ms. Herrera's request for review and remanding the case for further proceedings. AR 374-75. On January 12, 2018, Ms. Herrera appeared for a second hearing before ALJ Eric Weiss with attorney representatives Scott Rode and Laura Johnson. AR 202, 731. ALJ Weiss also heard from VE Mary Weber. AR 202. At the hearing, the ALJ recognized that Ms. Herrera had amended her alleged onset date to December 1, 2011. AR 210. ALJ Weiss issued an unfavorable decision on March 27, 2018. AR 122-36. The Appeals Council denied a timely request for review on September 20, 2018, making the ALJ's decision the final decision of the Commissioner. AR 1-4. On November 19, 2018, Ms. Herrera timely filed a Complaint seeking judicial review. Doc. 1. Because the parties are familiar with Ms. Herrera's medical history, the Court reserves discussion of the medical records relevant to this appeal for its analysis.

         Applicable Law

         A. Disability Determination Process

         An individual is considered disabled if 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) (pertaining to disability insurance benefits); see also Id. § 1382(a)(3)(A) (pertaining to supplemental security income disability benefits for adult individuals). The Social Security Commissioner has adopted the familiar five-step sequential evaluation process (“SEP”) to determine whether a person satisfies the statutory criteria as follows:

(1) At step one, the ALJ must determine whether the claimant is engaged in “substantial gainful activity.”[3] If the claimant is engaged in substantial gainful activity, she is not disabled regardless of her medical condition.
(2) At step two, the ALJ must determine the severity of the claimed physical or mental impairment(s). If the claimant does not have an impairment(s) or combination of impairments that is severe and meets the duration requirement, she is not disabled.
(3) At step three, the ALJ must determine whether a claimant's impairment(s) meets or equals in severity one of the listings described in Appendix 1 of the regulations and meets the duration requirement. If so, a claimant is presumed disabled.
(4) If, however, the claimant's impairments do not meet or equal in severity one of the listings described in Appendix 1 of the regulations, the ALJ must determine at step four whether the claimant can perform her “past relevant work.” Answering this question involves three phases. Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996). First, the ALJ considers all of the relevant medical and other evidence and determines what is “the most [the claimant] can still do despite [her physical and mental] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). This is called the claimant's residual functional capacity (“RFC”). Id. §§ 404.1545(a)(3), 416.945(a)(3). Second, the ALJ determines the physical and mental demands of the claimant's past work. Third, the ALJ determines whether, given the claimant's RFC, the claimant is capable of meeting those demands. A claimant who is capable of returning to past relevant work is not disabled.
(5) If the claimant does not have the RFC to perform her past relevant work, the Commissioner, at step five, must show that the claimant is able to perform other work in the national economy, considering the claimant's RFC, age, education, and work experience. If the Commissioner is unable to make that showing, the claimant is deemed disabled. If, however, the Commissioner is able to make the required showing, the claimant is deemed not disabled.

See 20 C.F.R. § 404.1520(a)(4) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4) (supplemental security income disability benefits); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

         The claimant has the initial burden of establishing a disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The burden shifts to the Commissioner at step five to show that the claimant is capable of performing work in the national economy. Id. A finding that the claimant is disabled or not disabled at any point in the five-step review is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         B. Standard of Review

         This Court must affirm the Commissioner's denial of social security benefits unless (1) the decision is not supported by “substantial evidence” or (2) the ALJ did not apply the proper legal standards in reaching the decision. 42 U.S.C. § 405(g); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Casias, 933 F.2d at 800-01. In making these determinations, the Court “neither reweigh[s] the evidence nor substitute[s] [its] judgment for that of the agency.'” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008). “[W]hatever the meaning of ‘substantial' in other contexts, the threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence “is ‘more than a mere scintilla.'” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).

         A decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record, ” Langley, 373 F.3d at 1118, or “constitutes mere conclusion, ” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The agency decision must “provide this court with a sufficient basis to determine that appropriate legal principles have been followed.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005). Therefore, although an ALJ is not required to discuss every piece of evidence, “the record must demonstrate that the ALJ considered all of the evidence, ” and “the [ALJ's] reasons for finding a claimant not disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). But where the reviewing court “can follow the adjudicator's reasoning” in conducting its review, “and can determine that correct legal standards have been applied, merely technical omissions in the ALJ's reasoning do not dictate reversal.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The court “should, indeed must, exercise common sense.” Id. “The more comprehensive the ALJ's explanation, the easier [the] task; but [the court] cannot insist on technical perfection.” Id.


         In support of her Motion to Remand, Ms. Herrera argues that the ALJ: (1) impermissibly engaged in “picking and choosing” among the assigned limitations in the state agency non-examining consultants' opinions; (2) failed to sufficiently credit the opinion of her treating physician, Dr. Roxana Raicu; and (3) failed to state sufficient reasons for discounting her subjective symptom evidence related to pain caused by her fibromyalgia. The Court does not find these arguments compelling and affirms the ALJ's decision.

         I. The ALJ Did Not Improperly Disregard The State Agency Consultants' Opinion.

         State agency consultant Cathy Simutis, Ph.D, evaluated Ms. Herrera's medical records on October 23, 2013. AR 250-81. Dr. Simutis reviewed and discussed the medical evidence and, in answering questions relating to Ms. Herrera's mental residual functional capacity assessment (“MRFCA”), assessed in worksheet format the following “moderate limitations”[4]:

• Remembering locations and work-like procedures;
• Understanding and remembering very short and simple instructions;
• Carrying out very short and simple instructions;
• Maintaining attention and concentration for extended periods;
• Completing a normal workday or workweek without interruption from psychologically based symptoms and performing at a consistent pace without unreasonable rest periods; and
• Accepting instructions and responding appropriately to criticism from supervisors; and
• Being aware of normal hazards and taking appropriate precautions.

         AR 261-63. Dr. Simitus found that Ms. Herrera was markedly limited in

• Understanding and remembering detailed instructions;
• Carrying out detailed instructions; and
• Interacting appropriately with the general public.

         AR 261-63. In her narrative explanation, Dr. Simitus concluded that Ms. Herrera

is able to perform work where interpersonal contact is incidental to work performed, complexity of tasks is learned and performed by rote, few variables, little judgment, supervision required is simple, direct and concrete (unskilled).

         AR 263. Dr. Simitus' findings were affirmed by Dr. Donald Gucker, Ph.D. on reconsideration.

         AR 342.

         The ALJ accorded the opinions of Dr. Simitus and Dr. Gucker “great weight” at step four because “[t]hese physicians are familiar with Agency policy and regulations and provided a detailed functional assessment of the claimant's abilities and limitations.” AR 133. “Further, although rendered in 2013 and 2014, subsequent evidence is consistent with this analysis and, if anything, shows improvement in the claimant's functioning, based on mental status examination findings noted above.” Id. In relevant part, the ALJ calculated Ms. Herrera's RFC as follows:

She must avoid more than occasional exposure to extreme cold, unprotected heights, and dangerous moving machinery, and must avoid more than occasional exposure to pulmonary irritants such as dust, fumes, odors and gases. She is able to understand, remember, and carry out simple instructions, and make commensurate work related decisions in a work setting with few, if any, changes. She is able to interact occasionally with supervisors, co-workers and the public, and maintain concentration, persistence and pace for two hours at a time during the workday with normally scheduled breaks.

         AR 127.

         Ms. Herrera argues that the ALJ thus engaged in prohibited “picking and choosing” of the limitations in the opinions of Dr. Simitus and Dr. Gucker without explanation. Doc. 18 at 14. She invokes the Tenth Circuit's holding in Haga v. Astrue that “[a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.” 482 F.3d 1205, 1208 (10th Cir. 2007); see Doc. 18 at 14. In Haga, a state agency examining psychological consultant reviewed the record and recommended additional testing for the claimant. 482 F.3d at 1207. The ALJ agreed and the doctor did his additional tests. Id. “[P]art of his detailed response was to fill out a mental RFC form, on which he marked appellant moderately impaired in seven out of ten functional categories.” Id. While the ALJ's RFC incorporated three of these moderate limitations, it did not incorporate the other four. Id. Further, the ALJ did not provide an explanation for rejecting the remaining four moderate limitations and “the evidence on which the ALJ explicitly relied in his decision [did] not imply an explanation . . . .” Id.

         On appeal, the Tenth Circuit noted “it is simply unexplained why the ALJ adopted some of [the doctor]'s restrictions but not others.” Id. at 1208. Although an “ALJ is entitled to resolve any conflicts in the record, ” the court stressed that an ALJ must actually identify the evidence that conflicts with the doctor's medical opinion or RFC assessment. Id. The Tenth Circuit reinforced this point later that same year when it applied Haga to remand where the “ALJ erred in accepting some of the moderate limitations in the Mental RFC form completed by . . . a nonexamining physician, but rejecting others without discussion.” Frantz v. Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007).

         When a doctor who assesses Section I moderate limitations also opines on a claimant's residual functioning capacity, however, the ALJ does not necessarily need to accept or discuss each moderate limitation. This limitation of Haga and Astrue's scope comes from the Tenth Circuit's decision in Smith v. Colvin, 821 F.3d 1264, 1268-69 (10th Cir. 2016).[5] In Smith, the consulting doctor reviewed the claimant's records and completed a worksheet finding that she had moderate limitations in her ability to:

• maintain concentration, persistence, and pace,
• remain attentive and keep concentration for extended ...

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