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Taylor v. Berryhill

United States District Court, D. Colorado

January 10, 2019

GARY TAYLOR, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          N. REID NEUREITER UNITED STATES MAGISTRATE JUDGE

         The government determined that Plaintiff Gary Taylor is not disabled for purposes of the Social Security Act. (AR[1] 28.) Mr. Taylor has asked this Court to review that decision. The Court has jurisdiction under 42 U.S.C. § 405(g), and both parties have agreed to have this case decided by a U.S. Magistrate Judge under 28 U.S.C. § 636(c). (Dkt. #13.)

         Standard of Review

         In Social Security appeals, the Court reviews the decision of the administrative law judge (“ALJ”) to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied. See Pisciotta v. Astrue, 500 F.3d 1074, 1075 (10th Cir. 2007). “Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009) (internal quotation marks omitted). The Court “should, indeed must, exercise common sense” and “cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012). The Court cannot reweigh the evidence or its credibility. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).

         Background

         At the second step of the Commissioner's five-step sequence for making determinations, [2] the ALJ found that Mr. Taylor “has the following severe impairments: obesity and diabetes mellitus.” (AR 13.) The ALJ then determined that Mr. Taylor “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments” in the regulations. (AR 14.) The ALJ found Mr. Taylor's cataracts, hearing loss, dyslexia, and, most significantly, back pain, to be non-severe impairments. (Id.) Because she concluded that Mr. Taylor did not have an impairment or combination of impairments that meets the severity of the listed impairments, the ALJ found that Mr. Taylor has the following residual functional capacity (“RFC”):

. . . [Mr. Taylor] has the residual functional capacity to perform medium work . . . except that he is able to frequently balance, kneel, crouch, crawl, and climb ramps and stairs; he can occasionally stoop. He cannot climb ladders, ropes, or scaffolds. He must avoid extreme cold. He requires instruction to be presented orally or verbally.

(AR 15.) The ALJ determined that Mr. Taylor was unable to perform past relevant work. (AR 20-21.) She noted that Mr. Taylor, who was 60 years old at the time, was an individual closely approaching retirement age. (AR 21.) The ALJ concluded, however, that, considering Mr. Taylor's “age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy” that Mr. Taylor could perform. (Id.) These included hand packager, meat trimmer, and machine packager. (Id.) Accordingly, Mr. Taylor was deemed to have not been under a disability from the alleged onset date of April 28, 2014. (AR 22.)

         Mr. Taylor asserts three reversible errors: first, that the ALJ's stated reasons for giving less weight to the examining physician and greater weight to the non-examining physician were not legitimate or supported by substantial evidence; second, that the ALJ's decision was not supported by substantial evidence due the ALJ's errors in evaluating the medical evidence; and third, that the ALJ's reasons for rejecting Mr. Taylor's subjective allegations were not legitimate. (Dkt. #15 at 5-20.) The Court will address each in turn.

         Analysis

         I. Weighing of Medical Opinions

         Mr. Taylor first argues that the ALJ committed a reversible error when she gave less weight to the opinion of an examining physician, Victor Nwanguma, M.D., than that of a non-examining state agency medical consultant, Antonio Medina, M.D.

         a. Dr. Nwanguma's Examination

         Dr. Nwanguma examined Mr. Taylor once in September 2014 as part of his disability application. (AR 256-64.) Mr. Taylor's chief complaint, which Dr. Nwanguma found to be reliable, was back pain, which had gotten progressively worse since he had gotten hurt 10 years earlier. (AR 256.) Mr. Taylor claimed he had a bulging disc in his back but indicated that he refused the recommended surgery. (Id.) Instead, Mr. Taylor treated the back pain with a transcutaneous electrical nerve stimulation (“TENS”) unit and “a massive amount of ibuprofen”- up to 60 100mg pills per week. (Id.) He presented bent over a cane for support and reported that he used a walker for ambulation. (AR 256, 257.) Mr. Taylor walked with an antalgic gait and, without his cane, his balance appeared unstable: he “was able to do heel-to-toe movement, but there was a significant risk of him falling to the ground.” (AR 257.)

         Mr. Taylor needed assistance getting on and off the examination table and getting out of the seated position. (AR 256, 257.) He reported that he was unable to lie flat on the examination table, and therefore could not attempt a supine straight leg raise test. (AR 259.) He did not perform hip or knee joint range of motions tests. (AR 258.) A seated straight leg raise test was negative. (Id.). Mr. Taylor had reduced lumbar flexion to 30 degrees, lumbar extension was 5 degrees, and lateral flexion was not performed due to the risk of falling. (Id.) Dr. Nwanguma noted decreased sensation in both upper extremities. (Id.) However, he found that Mr. Taylor had “[g]ood muscle mass and muscle tone” and “[s]trength 5/5 in both upper and lower extremities.” (Id.)

         Dr. Nwanguma diagnosed Mr. Taylor with back pain, obesity, and peripheral neuropathy with decreased sensation to his extremities. (Id.) Dr. Nwanguma opined that Mr. Taylor was limited in his ability to stand, walk, and sit, but if his back pain was controlled, he would have no limitations. (AR 260.) Dr. Nwanguma determined that the cane is medically necessary for balance and support, and that Mr. Taylor was limited to lifting less than 10 pounds. (Id.) As to postural activities, Dr. Nwanguma opined that Mr. Taylor would have “difficulty with balancing, stooping, kneeling, crouching, crawling all the time due to decreased flexion of the lumbar spine and back pain.” (Id.)

         b. Dr. Medina's ...


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