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Martinez v. Berryhill

United States District Court, D. Colorado

March 19, 2018

NANCY A. BERRYHILL, acting Commissioner of Social Security, Defendant.



         This matter is before the Court on review of the Social Security Commissioner's decision to deny Plaintiff Diane Martinez's application for disability insurance benefits and supplemental security income. Jurisdiction is proper under 42 U.S.C. § 405(g).

         Plaintiff argues that the administrative law judge's (“ALJ”) determination that Plaintiff was not disabled is erroneous because the ALJ improperly weighed various medical opinions and incorrectly assessed Plaintiff's credibility. (Doc. # 16.) For the reasons set forth below, the Court affirms the decision of the Commissioner to deny Plaintiff's application for disability insurance benefits and supplemental security income.

         I. BACKGROUND


         Plaintiff was 32 years old on August 1, 2011, the alleged onset of her disability. (AR at 159.)[1] Plaintiff had previously worked as a home attendant, a nurse assistant, a cashier, and a sandwich maker. (AR at 195.)

         On April 24, 2013, Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and an application for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1382-85. (AR at 151-62.) Both applications were initially denied by an administrator at the regional Social Security Office in Alamosa, Colorado, on October 24, 2013. (AR at 54-55, 67, 80.) Plaintiff filed a written request for a hearing on December 19, 2013. (AR at 86.) Plaintiff has been represented by counsel since January 12, 2015. See (AR at. 113.)

         ALJ William Musseman conducted a hearing on June 3, 2015, in Colorado Springs, Colorado. (AR at 42-53.) Plaintiff testified that she experienced hand and back pain, was anxious and depressed, found it difficult to focus on tasks, and had knee surgery approximately two weeks prior to the hearing. (AR at 44-50.) Bruce Magnuson, a vocational expert, also testified at the hearing. (AR at 50-53.) When prompted by the ALJ, the vocational expert stated that a hypothetical individual of the same age, education, and professional experience, and with the same residual functional capacity as Plaintiff, would not be able to do any of Plaintiff's past work. (AR at 52.) The vocational expert did, however, identify jobs available in Colorado that such a hypothetical individual could perform: an assembler of small products; a cleaner/maid; and a routing clerk or mail sorter. (Id.)

         On June 23, 2015, the ALJ issued a written decision, in which he concluded that Plaintiff was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. (AR at 26.) The ALJ concluded that Plaintiff “[was] capable of making a successful adjustment to other work that exists in significant numbers in the national economy.” (Id.) On July 24, 2015, Plaintiff requested review of the ALJ's decision. (AR at 13-14.) When the Appeals Council declined review, the ALJ's decision became the final decision of the Commissioner. See Blea v. Barnhart, 466 F.3d 903, 908 (10th Cir. 2006). Plaintiff initiated the instant action on December 1, 2016, seeking reversal of the ALJ's decision and remand for a new hearing. (Doc. # 1.)


         The record is replete with medical records from 2009 through 2013, when Plaintiff frequently presented to emergency rooms, physical therapy offices, and primary care clinics with various complaints of back and foot pain, abdominal pain, skin boils, knee injuries, a wrist fracture, insomnia, and pregnancy-related symptoms. See (AR at 247-835.) Throughout this time, Plaintiff's treating primary care physician was Dr. Tammy Gregg, D.O. On the alleged date of onset of disability, August 1, 2011, Dr. Gregg's office filled out a check-box form for Plaintiff's participation in the Rio Grande County's Colorado Works Program, identify a “healthy pregnancy” as the only “significant finding.” (AR at 329-330.) Dr. Gregg subsequently filled out similar forms for Plaintiff in August 2011, January 2012, April 2012, April 2013, March 2014, November 2014, and April 2015. E.g., (AR at 492-93, 325-26, 388-89, 390-91, 836- 37.) Dr. Gregg identified back pain as the only consistent “significant finding” and sometimes checked that Plaintiff was unable to lift various weights, climb stairs and ladder, or push and pull. See (id.) On January 15, 2015, Dr. Gregg completed a checkbox report for Plaintiff's attorney, stating that she had treated Plaintiff for thoracic sprain for four years and that Plaintiff had limited capacities to lift weights, sit for more than two hours at a time, and stand for more than thirty minutes at a time. (AR at 501-03.)

         Various images of Plaintiff's lumbar spine substantiate Plaintiff's complaint of back pain. For example, an x-ray in September 2012 showed “[m]ild retrolisthesis of L4 upon L5, ” but the exam was “otherwise normal.” (AR at 370.) An MRI also taken in September 2012 suggested “[m]ild L5-S1 degenerative disc disease and [a] 3mm central subligamentous disc protrusion without nerve root compression.” (AR at 317.) Plaintiff's complaints of back pain were “stable”; there was “no radiation of pain, ” and “symptoms [were] relieved by pain meds/drugs and physical therapy.” (AR at 667.)

         Relevant here, the ALJ also considered various medical opinions in the record. See generally (AR at 24-26.) In September 2013, state agency non-examining physician Dr. Morris Susman, M.D., analyzed Plaintiff's medical records and determined that Plaintiff could stand or walk for six hours and sit for six hours in an eight-hour workday. (AR at 76.) Dr. Susman concluded that Plaintiff was not disabled because her conditions “[were] not severe enough to keep [her] from working” though they did result in “some limitations in [her] ability to perform work-related activities.” (AR at 81.)

         On October 3, 2013, psychologist Dr. Immaculate Wesley, Psy.D., examined Plaintiff. (AR at 475-80.) Based on Plaintiff's complaints, Dr. Wesley made diagnostic impressions of “pain disorder associated with both psychological factors and a general medical condition, ” “major depressive disorder with melancholic features, ” “posttraumatic stress disorder with panic attacks, ” and “generalized anxiety disorder.” (AR at 479.)

         Later in October 2013, state agency non-examining psychologist Dr. Irwin Matus, Ph.D., assessed Plaintiff's records. (AR at 64-66.) He stated that the “few psychiatric observations” in her medical records were “unremarkable, ” that “[t]here [was] no psychiatric record, ” and that Plaintiff was “not taking psychotropic medication.” (AR at 66.) As to Dr. Wesley's report, Dr. Matus stated that Dr. Wesley based his conclusions on Plaintiff's self-reporting and that Plaintiff's presentation at that appointment “contradict[ed]” Dr. Wesley's opinion that Plaintiff is “extremely impaired as to social interaction.” (Id.) Dr. Matus concluded that Plaintiff's allegations were “partially credible.” (Id.) In Dr. Matus's opinion, Plaintiff's “[p]sychiatric condition [did] not preclude all work tasks;” she was able to “perform lower-end, moderately-complex work tasks.” (Id.)


         The standard of review in a Social Security appeal is whether the Commissioner's final decision is supported by substantial evidence and whether he applied the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. at 1262. The district court is “not to reweigh the evidence or try the issues de novo” but should “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met.” Id. The court should determine if the substantiality test has been met, regardless of whether it would have reached a different result based on the record. Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

         Second, in addition to the absence of substantial supporting evidence, “[f]ailure 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.” Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984); see also Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). “There are specific rules of law that must be followed in deciding whether evidence is substantial in these disability cases.” Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987).

         However, not every error in evaluating evidence or applying the correct legal standard warrants reversal or remand. “Courts may not reverse and remand for failure to comply with a regulation without first considering whether the error was harmless.” Bornette v. Barnhart, 466 F.Supp.2d 811, 816 (E.D. Tex. 2006); see also Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (recognizing that the Tenth Circuit has “specifically applied [the principle of harmless error] in social security disability cases” and collecting cases). Harmless error exists where it is “inconceivable” that a different administrative conclusion would have been reached absent the error. Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).

         III. ANALYSIS

         A. AUTHORITY

         “Disability” is defined in the Act as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment…” 42 U.S.C. § 423(d)(1)(A). The Act further provides that

“[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial work which exists in the national economy...”

42 U.S.C. § 423(d)(2)(A). The claimant bears the burden of proving that she is disabled. 20 C.F.R. § 404.1512(a); Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009).

         The Commissioner has established a five-step sequential evaluation process to determine whether a claimant is disabled, which is codified in 20 C.F.R. § 416.920(a)(4):

(i) At the first step, we consider your work activity, if any. If you are doing substantial gainful activity, we will find that you are not disabled. …
(ii) At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in §416.909, or a combination of impairments that is severe and meets the duration requirement, we will find that you are not disabled. …
(iii) At the third step, we also consider the medical severity of your impairment(s). If you have an impairment(s) that meets or equals one of our listings in appendix 1 to subpart P of part 404 of this chapter and meets the duration requirement, we will find that you are disabled. …
(iv) At the fourth step, we consider our assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, we will find that you are not disabled. ...
(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. ...

         A finding that a claimant is or is not disabled at any point in the five-step evaluation process is conclusive and terminates the analysis. Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 801 (10th Cir. 1991).

         20 C.F.R. § 404.1527(c) (2013), [2] regarding claims filed before March 27, 2017, codifies the Commissioner's assessment of medical opinions received into evidence.[3]20 C.F.R. § 404.1527(c)(2) states a presumption that the Commissioner will give more weight to the medical opinion of a treating source. This regulation dictates that the Commissioner will give a treating source's medical opinion controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c) also requires that the Commissioner apply the factors listed in its paragraphs (c)(2) through (c)(6) to determine the weight to give the treating source's medical opinion when the Commissioner does not assess it controlling weight. 20 C.F.R. § 404.1527(c) requires the Commissioner to apply these factors to all medical opinions when the Commissioner does not give a ...

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