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Becker v. Berryhill

United States District Court, D. Colorado

August 15, 2017

ARVALEE GERALD BECKER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          LEWIS T. BABCOCK, JUDGE

         Plaintiff Arvalee Becker appeals the final decision of the Acting Commissioner of Social Security (“SSA”) denying his application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. I have considered the parties' briefs (ECF Nos. 14-16) and the administrative record (ECF No. 11) (“AR”). Oral argument would not materially assist me in determining this appeal.

         Mr. Becker argues the ALJ erred in assessing his RFC, conducted a faulty credibility assessment, and therefore wrongly determined he could return to his past relevant work. As I describe below, I conclude that, to the extent the ALJ erred, any error was harmless. I accordingly AFFIRM the Commissioner's final order.

         I. Background

         A. Procedural History

         This case has wended its way through various stages of the SSA application and appeals processes for about a decade. I summarize here the procedural history necessary to understanding the posture of this appeal.

         Mr. Becker filed his application for disability insurance benefits and supplemental social security income with SSA in March 2007, alleging disability beginning July 13, 2005. AR 202-13. After SSA initially denied his claim, AR 136-41, Mr. Becker requested a hearing, AR 144. The hearing took place on November 18, 2008, before an ALJ. AR 690-727. On August 18, 2009, the ALJ partially granted Mr. Becker's claim, concluding he was disabled within the meaning of the Social Security Act as of November 11, 2008, but not before then. AR 118-31. Mr. Becker asked SSA's Appeals Council to review the ALJ's decision. AR 169. The Appeals Council remanded the case to the ALJ on December 23, 2010, to further develop the record and evaluate the opinion evidence for the entire period at issue (beginning July 13, 2005). AR 132-35.

         On remand, the ALJ again issued a partially favorable decision, finding Mr. Becker disabled as of November 11, 2008, but not before then. AR 10-31. Mr. Becker appealed to SSA's Appeals Council, AR 8-9, and on March 8, 2012, the Appeals Council denied review. AR 1-3. Mr. Becker appealed to this Court, and Judge Martinez remanded the case, concluding the ALJ failed to consider all the relevant evidence when it found he was not disabled before November 11, 2008, and ordering the ALJ to consider and discuss a Colorado State Vocational Rehabilitation Report. Becker v. Astrue, No. 12-cv-0786-WJM, 2013 WL 1413350, at *3 (D. Colo. Apr. 8, 2013); AR 674-85.

         On remand, the ALJ failed to discuss the rehabilitation report despite the district court's directive, and yet again concluded that Mr. Becker was not disabled before November 11, 2008. AR 925-39. After Mr. Becker appealed to this Court, the Commissioner moved to remand the case in light of the ALJ's failure to follow this Court's mandate. AR 908-09. Judge Kane granted the Commissioner's motion. AR 913-15.

         On remand, the ALJ concluded for the fourth time that Mr. Becker was not disabled before November 11, 2008. AR 854-70 (March 25, 2016 decision). The ALJ's March 2016 decision is the Commissioner's final decision in this case. See 20 C.F.R. § 404.984(d) (in cases on remand from the federal district court, “[i]f no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the administrative law judge becomes the final decision of the Commissioner after remand”). On July 21, 2016, Mr. Becker timely filed this appeal. (ECF No. 1.) I have jurisdiction pursuant to 42 U.S.C. § 405(g).

         B. Facts

         Before July 2005, Mr. Becker was treated by his family doctor, Sean O'Donnell, M.D, for occasional neck and back pain, high cholesterol, and gastroesophageal reflux disease (GERD) symptoms with prescription medication. E.g., AR 353-60, 486. Mr. Becker was also treated for depression and depression-related fatigue, AR 329, as well as carpel tunnel syndrome. AR 1035-42, 1047-72.

         During the disability period (July 13, 2005 to November 10, 2008), Mr. Becker occasionally reported depression, insomnia, and back, neck, leg, and arm pain to Dr. O'Donnell. Imaging of his neck was essentially normal, AR 372-73, and imaging of his back showed normal vertebral height but some degenerative changes in his cervical spine, AR 375, 414; see also AR 1158 (MRI from 2003). Imaging of his knee showed mild joint effusion. AR 408-10.

         In December 2006, Dr. O'Donnell completed a MED-9 form (a form used by the State of Colorado to determine medical eligibility for a state aid program) and concluded that Mr. Becker was “permanently disabled” since May 2003. AR 332-33. He listed Mr. Becker's diagnoses as tinnitus, degenerative joint disease, degenerative disc disease, bilateral carpel and cubital tunnel, and bilateral shoulder pain. AR 333. On November 11, 2008, Dr. O'Donnell completed a medical source statement. AR 482-85. He diagnosed Mr. Becker with chronic fatigue syndrome, GERD, “hyperlipid” and “HTN” (hypertension). AR 482. He also endorsed severe restrictions on walking, sitting, standing, lifting, and various postures. AR 483-84. In June 2011, Dr. O'Donnell “reaffirmed” his November 11, 2008 statement and clarified that he believed the disabling symptoms began in 1999. AR 576.

         Dr. David Gibbons, D.O., examined Mr. Becker in July 2007 and prepared an agency-ordered report. AR 382-86. Dr. Gibbons observed that Mr. Becker exhibited “significant pain behaviors” during parts of the examination but did not exhibit them during “deep palpation” or straight leg-raise tests. AR 384. Dr. Gibbons characterized the physical examination as “essentially normal” with the exception of a positive test for carpel tunnel and some limitation in side-bending and rotation to the left. Id. Dr. Gibbons opined that Mr. Becker had no visual, communicative, or environmental limitations, and no postural or reaching, handling, feeling, grasping, or fingering limitations. AR 385. He could not “corroborate (or refute)” any of Mr. Becker's self-reported sitting, standing, walking, lifting, or carrying limitations. Id.

         Dr. Genest reviewed the medical evidence from the disability period and concluded that Mr. Becker had no severe physical disability restrictions. AR 610. Dr. Genest opined that Mr. Becker should not work on uneven ground or climb ladders or scaffolds unless he was wearing a knee brace. AR 611. He also opined that if he had more than “mild” degenerative disease in his spine, he may not want to lift anything over 50 pounds. Id.

         Also in July 2007, Mr. Becker saw Terry Jones, M.D., a psychiatrist, for an agency-ordered consultative examination. AR 377. Dr. Jones concluded Mr. Becker was “mildly depressed, ” but cooperative, congenial, logical, and organized, with intact memory, good concentration, and normal abstract thinking. AR 379-80. He assessed chronic pain disorder with both psychological and medical factors and dysthymic disorder (a mild form of chronic depression). AR 380-81.

         Gayle Frommelt, Ph.D., also assessed Mr. Becker's mental impairments, but her assessment was based only on her review of the medical records. AR 388-402. Dr. Frommelt concluded Mr. Becker had mild impairment in maintaining concentration, persistence, and pace but had no severe mental impairments. AR 399, 401.

         II. Legal Standards

         A. SSA's Five-Step Process for Determining Whether a ...


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