Harry v. Berryhill

          ORDER

          KRISTEN L. MIX, MAGISTRATE JUDGE.

         This matter is before the Court^[1] on the Social Security Administrative Record [#11], ^[2] filed November 13, 2018, in support of Plaintiff’s Complaint [#1] seeking review of the decision of Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, (“Defendant” or “Commissioner”) denying Plaintiff’s claim for disability insurance benefits pursuant to Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., and for supplemental security income benefits pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. On December 24, 2018, Plaintiff filed an Opening Brief [#16] (the “Brief”). Defendant filed a Response [#17] in opposition, and Plaintiff filed a Reply [#18]. The Court has jurisdiction to review the Commissioner’s final decision under 42 U.S.C. §§ 405(g) and 1383(c). The Court has reviewed the entire case file and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the decision of the Commissioner is REVERSED and REMANDED.

         I. Background

         Plaintiff alleges that he became disabled at the age of thirty-three on December 10, 2015. Tr. 12, 22.^[3] On December 16, 2015, Plaintiff filed applications for disability insurance benefits under Title II and for supplemental security income under Title XVI. Tr. 12. On February 21, 2018, an Administrative Law Judge (the “ALJ”) issued an unfavorable decision. Tr. 23.

         The ALJ determined that Plaintiff met the insured status requirements of the Act through December 31, 2021, and that Plaintiff had not engaged in substantial gainful activity (“SGA”) since December 10, 2015, the alleged onset date. Tr. 14. The ALJ found that Plaintiff suffers from six severe impairments: (1) degenerative disc disease with stenosis, (2) congenital pes cavus, (3) status-post spinal cord stimulator, (4) obesity, (5) depression, and (6) anxiety. Tr. 14. However, the ALJ also found that these impairments, individually or in combination, do not meet or medically equal “the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” Tr. 15. The ALJ next concluded that Plaintiff has the residual functional capacity (“RFC”) to perform light work with the following limitations: (1) he can occasionally bend, stoop, squat, crouch, and crawl; (2) he can frequently push and pull with the upper extremities; and (3) he is limited to occasional work interactions with the public. Tr. 16. Based on the RFC and the testimony of an impartial vocational expert (“VE”), the ALJ found that Plaintiff could perform no past relevant work, but that he was able to perform the representative occupations of mail clerk, office helper, marker, document preparer, eyeglass frame polisher, and surveillance system monitor. Tr. 21-22. She therefore found Plaintiff not disabled at step five of the sequential evaluation. Tr. 23. The ALJ’s decision has become the final decision of the Commissioner for purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1481.

         II. Standard of Review and Applicable Law

          Pursuant to the Act:

[T]he Social Security Administration is authorized to pay disability insurance benefits and Supplemental Security Income to persons who have a “disability.” A person qualifies as disabled, and thereby eligible for such benefits, “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 gainful work which exists in the national economy.”

Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B)). Under the applicable legal standard, a claimant is disabled if he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009) (quoting 20 C.F.R. § 416.905(a)). The existence of a qualifying disabling impairment must be demonstrated by “medically acceptable clinical and laboratory diagnostic” findings. 42 U.S.C. §§ 423(d)(3), 423(d)(5)(A).

         “When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination.” Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir. 1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Act. To be disabling, the claimant’s condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).

         The Court reviews a final decision by the Commissioner by examining the administrative record and determining “whether the [ALJ’s] factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). However, the Court “may neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Harper v. Colvin, 528 Fed.Appx. 887, 890 (10th Cir. 2013) (quoting Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000)). In other words, the Court does not reexamine the issues de novo. Sisco v. U.S. Dep’t of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). Thus, even when some evidence could support contrary findings, the Court “may not displace the agency’s choice between two fairly conflicting views, ” even if the Court may have “made a different choice had the matter been before it de novo.” Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007).

         A. Legal Standard

         The Social Security Administration uses a five-step framework to determine whether a claimant meets the necessary conditions to receive Social Security benefits. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof at steps one through four, and if the claimant fails at any of these steps, consideration of any subsequent step or steps is unnecessary. Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (“If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.”). The Commissioner bears the burden of proof at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

         Step one requires the ALJ to determine whether a claimant is “presently engaged in substantial gainful activity.” Wall, 561 F.3d at 1052 (quoting Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004)). If not, the ALJ considers at step two whether a claimant has “a medically severe impairment or impairments.” Id. “An impairment is severe under the applicable regulations if it significantly limits a claimant’s physical or mental ability to perform basic work activities.” Wall, 561 F.3d at 1052 (citing 20 C.F.R. § 404.1521). Next, at step three, the ALJ considers whether a claimant’s medically severe impairments are equivalent to a condition “listed in the appendix of the relevant disability regulation, ” i.e., the “Listings.” Wall, 561 F.3d at 1052 (quoting Allen, 357 F.3d at 1142). “If a claimant’s impairments are not equivalent to a listed impairment, the ALJ must consider, at step four, whether a claimant’s impairments prevent [him or her] from performing [his or her] past relevant work.” Wall, 561 F.3d at 1052 (citing Allen, 357 F.3d at 1142). “Even if a claimant is so impaired, the agency considers, at step five, whether [he or she] possesses the sufficient [RFC] to perform other work in the national economy.” Id.

         B. Substantial Evidence

         An ALJ must consider all evidence and explain why he or she finds a claimant not disabled. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). However, the ALJ need not specifically “reference everything in the administrative record.” Wilson, 602 F.3d at 1148. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 1140 (internal quotation marks omitted). “It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). A decision by the ALJ is not based on substantial evidence “if it is overwhelmed by other evidence in the record . . . .” Grogan v. Barnhart, 399 F.3d 1257, 1261-62 (10th Cir. 2005). In other words, the Court’s determination of whether the ALJ has supported his or her ruling with substantial evidence “must be based upon the record taken as a whole.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). Further, evidence is not substantial if it “constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). In addition, “if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

         III. Analysis

         Plaintiff makes two primary arguments in his assertion that the ALJ committed reversible error. First, Plaintiff argues that the “RFC is not supported by substantial evidence because the ALJ failed to properly weigh the opinion evidence of record.” Brief [#16] at 14-19. Second, Plaintiff argues that the “ALJ erred by failing to include mental limitations in the RFC to account for her PRT analysis, and also failed to include limitations corresponding to the opinions given great weight.” Id. at 19-21.

         A. Step Four: Opinion Evidence Provided by Dr. Hargett and PA Prochnio

          First, Plaintiff argues that the “RFC is not supported by substantial evidence because the ALJ failed to properly weigh the opinion evidence of record.” Brief [#16] at 14-19. This argument consist of a number of sub-arguments, but all appear to be aimed toward the ALJ’s step four RFC analysis. See id.

         Plaintiff argues that the ALJ failed to properly weigh the opinions of psychologist Harl Hargett, Ph.D. (“Dr. Hargett”), and Kirk Prochnio, PA-C (“PA Prochnio”). Id. With respect to their medical opinions, the ALJ stated:

The undersigned also considered the more limiting opinion of the claimant’s psychologist Harl Hargett, Ph.D. This opinion indicates that the claimant can only stand and sit for up to a 1/3 of each eight-hour workday and can only lift up to twenty pounds occasionally and up to five pounds frequently, along with the ability to only infrequently to occasionally perform manipulative activities or postural activities. He also indicated that the claimant would be off task up to 70 percent of the time and need excessive breaks. He would also need to alternate positions every thirty minutes. Dr. Hargett also indicated that the claimant had marked limitation in his ability to function in the mental demands of work and would be off task 60 percent of a typical day due to mental symptoms. He described many marked limitations in areas of understanding and memory, sustaining concentration and persistence, interacting socially, and adapting.

There is also a more limiting opinion from Kirk Prochnio, PA-C. According to Mr. Prochnio, the claimant can sit occasionally in eight-hours and occasionally lift up to five pounds and infrequently twenty or more. The claimant is limited to no more than occasional manipulative and infrequent postural abilities with the need to lie down during the day and shift positions and be off task more than fifty percent of a typical day.

The extreme limitations noted by these treatment providers are not supported by the relatively mild findings upon imaging. They are not consistent with the examinations [sic] findings, including the longitudinal evidence showing relatively intact strength, sensory perception, motor function, and gait. They are not necessarily consistent with the claimant’s admissions of improvement []or with his relatively active daily activities, including his ability to be a caretaker to his two young kids or his ability to work part-time. Moreover, Dr. Hargett’s statement in regards to the claimant’s physical functioning is out of his area of expertise as he is not a physician. Additionally, Mr. Prochnio is not a qualified medical source. He did not adequately explain physical ...