Sanchez v. Social Security Administration
Filing
28
MEMORANDUM OPINION AND ORDER by Magistrate Judge Kirtan Khalsa denying 23 MOTION to Remand to Agency for Payment of Benefits, or in the Alternative, for Rehearing. (kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOANN MARY SANCHEZ,
Plaintiff,
vs.
Civ. No. 16-1160 KK
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER2
THIS MATTER is before the Court on the Social Security Administrative Record
(Doc. 18) filed February 16, 2017, in support of Plaintiff Joann Mary Sanchez’s (“Plaintiff”)
Complaint (Doc. 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 Title II disability insurance benefits. On May 24, 2017, Plaintiff filed her
Motion to Reverse and Remand for Payment of Benefits, or in the Alternative, for Rehearing,
With Supporting Memorandum (“Motion”). (Doc. 23.) The Commissioner filed a Response in
opposition on June 29, 2017 (Doc. 25), and Plaintiff filed a Reply on August 4, 2017. (Doc. 26.)
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.
1
Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill is substituted for Carolyn Colvin as the Acting
Commissioner of the Social Security Administration. Fed. R. Civ. P. 25(d).
2
Pursuant to 28 U.S.C. § 636(c), the parties consented to the undersigned to conduct any or all proceedings, and to
enter an order of judgment, in this case. (Docs. 4, 11, 12.)
I. Background and Procedural Record
Claimant Joann Mary Sanchez (“Ms. Sanchez”) alleges that she became disabled on
August 19, 2010,3 at the age of fifty-three because of back injury, nerve damage, shoulder injury,
fibromyalgia, chronic cervical pain, and chronic bursitis. (Tr. 40. 288, 292.4) Ms. Sanchez
completed the eighth grade in 1970, and most recently worked as an assembly line worker.
(Tr. 293, 298.) Ms. Sanchez reported she stopped working on August 19, 2007, due to her
medical conditions. (Tr. 292.) Ms. Sanchez’s date of last insured is December 31, 2013.5
On May 6, 2010, Ms. Sanchez protectively filed an application for Social Security
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42
U.S.C. § 401 et seq. (Tr. 288, 315-17.) Ms. Sanchez’s application was initially denied on
November 3, 2010. (Tr. 100, 128-31.) It was denied again at reconsideration on July 19, 2011.
(Tr. 101, 139-41.)
On August 9, 2011, Ms. Sanchez requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 144-45.) The ALJ conducted a hearing on October 2,
2012. (Tr. 66-99.) On October 22, 2012, ALJ Michelle K. Lindsay issued an unfavorable
decision. (Tr. 103-118.) On May 30, 2014, the Appeals Council granted Ms. Sanchez’s request
for review and remanded the case because
[t]he Administrative Law Judge considered and relied on evidence that does not
pertain to the claimant. Pages 2 through 18 of Exhibit 2F concern an individual
other than the claimant. The decision cites to that evidence and appears to make
negative inferences based on the evidence (Decision, pages 6, 10, and 12). The
Appeals Council has removed that evidence from the claimant’s electronic folder.
Because the Administrative Law Judge relied on erroneous evidence, further
evaluation of the nature and severity of the claimant’s condition is required.
3
Ms. Sanchez initially alleged an onset date of August 19, 2007. (Tr. 288.)
4
Citations to “Tr.” are to the Transcript of the Administrative Record (Doc. 18) that was lodged with the Court on
February 16, 2017.
5
To receive benefits, a claimant must demonstrate disability prior to her date of last insured. See Potter v. Sec’y of
Health & Human Servs., 905 F.2d 1346, 1347 (10th Cir. 1990).
2
(Tr. 125.) On remand, the ALJ was instructed to obtain updated treatment records in accordance
with the regulations, to further consider the issue of disability in light of correct evidence, and to
further evaluate claimant’s subjective complaints and provide rationale in accordance with the
disability regulations pertaining to evaluation of symptoms. (Id.) The ALJ conducted a second
hearing on February 9, 2015. (Tr. 33-65.) Ms. Sanchez appeared in person and was represented
by Attorney Michelle Baca.6 The ALJ took testimony from Ms. Sanchez (Tr. 42-59), and from
VE Thomas Greiner (Tr. 59-64.)
On June 5, 2015, ALJ Michelle K. Lindsay issued an
unfavorable decision. (Tr. 7-23.) On September 22, 2016, the Appeals Council issued its
decision denying Ms. Sanchez’s request for review and upholding the ALJ’s final decision. (Tr.
1-5.) On October 20, 2016, Ms. Sanchez timely filed a Complaint seeking judicial review of the
Commissioner’s final decision. (Doc. 1.)
II. 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 42 U.S.C. § 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 analysis to determine whether a person satisfies the statutory criteria
as follows:
6
Ms. Sanchez is represented in these proceedings by Attorney Francesca J. MacDowell. (Doc. 1.)
3
(1)
At step one, the ALJ must determine whether the claimant is engaged in
“substantial gainful activity.”7 If the claimant is engaged in substantial
gainful activity, she is not disabled regardless of his 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 listing 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
[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 claimant’s past work. Third, the ALJ determines whether,
given 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
7
Substantial work activity is work activity that involves doing significant physical or mental activities. 20 C.F.R.
§§ 404.1572(a), 416.972(a). Work may be substantial even if it is done on a part-time basis or if you do less, get
paid less, or have less responsibility than when you worked before. Id. Gainful work activity is work activity that
you do for pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).
4
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, 107 S.Ct. 2287, 2294, n. 5, 96 L.Ed.2d 119 (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). A decision is based on substantial evidence where it is supported
by “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. 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
5
disabled” must be “articulated with sufficient particularity.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996).
III. Analysis
The ALJ made her decision that Ms. Sanchez was not disabled at step four of the
sequential analysis. (Tr. 22-23.) Specifically, the ALJ determined that Ms. Sanchez met the
insured status requirements of the Social Security Act through December 31, 2013, and that
Ms. Sanchez had not engaged in substantial gainful activity since August 19, 2007. (Tr. 12.)
She found that Ms. Sanchez had severe impairments of degenerative disk disease of the lumbar
spine, status-post fusion; borderline intellectual functioning; and obesity. (Tr. 13.) The ALJ,
however, determined that Ms. Sanchez’s impairments did not meet or equal in severity one the
listings described in Appendix 1 of the regulations. (Tr. 13-16.) As a result, the ALJ proceeded
to step four and found that through the date last insured Ms. Sanchez
had the residual functional capacity to perform less than the full range of light
work as defined in 20 CFR 404.1567(b). Specifically, the claimant could lift
and/or carry twenty pounds occasionally and ten pounds frequently; push and/or
pull twenty pounds occasionally and ten pounds frequently; sit for six hours in an
eight-hour workday; and stand, and/or walk for six hour[s] out of the eight-hour
workday. Further, she was able to occasionally climb stairs and ramps, balance,
stoop, crouch, kneel, and crawl, but never climb ladders, ropes, or scaffolds.
From a mental standpoint, she was able to understand, remember, and carry out
simple instructions and to maintain attention and concentration to perform simple
tasks for two hours at a time without requiring redirection to task. She required
work involving no more than occasional change in the routine work setting, and
no more than occasional independent goal setting or planning. Work was
required to be routine, rote, and repetitive.
(Tr. 16.) The ALJ further concluded at step four that through the date last insured, Ms. Sanchez
was capable of performing her past relevant work as a small products assembler, as it is
performed at the light exertional level and is unskilled. (Tr. 22.)
6
For this reason, the ALJ
determined that Ms. Sanchez was not under a disability from her alleged onset date through her
date last insured. (Tr. 23.)
In support of her Motion, Ms. Sanchez argues that (1) the ALJ failed to use the correct
legal standards in weighing the medical evidence; (2) the ALJ’s RFC is not supported by
substantial evidence; and (3) the ALJ’s past work finding is contrary to evidence and law. (Doc.
23 at 6-24.) For the reasons discussed below, the Court finds there is no reversible error.
A.
Evaluation of Medical Evidence
Ms. Sanchez broadly argues that the ALJ failed to weigh the medical evidence according
to law. (Doc. 23 at 6-16.) Specifically, she argues that (1) “[t]he ALJ failed to apply the correct
legal standard in assessing whether the treating doctor findings supported Ms. Sanchez’s claims
of inability to walk without limping and losing her balance, that sitting in one position for longer
than 15 minutes or standing for more than 10 minutes causes her leg to go to sleep, and that
when she moves her head a certain way she becomes dizzy”; (2) the ALJ “play[ed] doctor” by
interpreting MRI and treating physician findings; (3) the ALJ improperly weighed State agency
examining psychological consultant Louis Wynne, Ph.D’s opinion; and (4) the ALJ accorded
significant weight to State agency nonexamining psychological consultant Madelyn MirandaDeCollibus, Psy.D.’s opinion, but failed to incorporate her moderate limitations in the RFC
assessment. (Id.) The Commissioner argues that the ALJ reasonably considered the medical
evidence regarding Ms. Sanchez’s physical limitations and mental functioning. (Doc. 25 at 917.) The Court will address each argument in turn.
7
1.
Treating Physicians
a.
Dr. S. Kassicieh
Prior to her date of last insured, the medical evidence record indicates that Ms. Sanchez
saw Dr. S. Kassicieh, DO ten times from July 15, 2009, through May 13, 2010.8 (Tr. 413-414,
445-446, 449.) Ms. Sanchez’s chief complaint at five of these visits was “Rx refills.”9 (Tr. 414,
446, 449.) On one visit, on May 13, 2010, Ms. Sanchez’s chief complaint was “back pain.” (Tr.
445.) Dr. Kassicieh noted physical exam results at five of the ten visits, which were all within
normal limits.10 (Tr. 413, 445, 449.) Dr. Kassicieh assessed hypertension at four visits, and
arthralgia at five visits. (Tr. 413-414, 445, 449.)
b.
Dr. Donald Ortiz
Ms. Sanchez presented to Dr. Donald Ortiz of Midtown Family Medicine on February 25,
2010, to establish care.
(Tr. 479-80.)
Ms. Sanchez reported a past medical history of
hypertension, carpal tunnel syndrome, fibromyalgia, and disability since 2007. (Tr. 479.) She
reported using hydrocodone daily for chronic pain and fibromyalgia. (Id.) Ms. Sanchez told
Dr. Ortiz that her present concern was for neck pain after falling three months earlier. (Id.) She
stated she had a herniated disk in her neck and had a cervical MRI in 2009, but no records were
available. (Id.) On his review of systems, Dr. Ortiz noted that Ms. Sanchez denied, inter alia,
any dizziness or focal weakness or loss of sensation. (Id.) On physical exam, Dr. Ortiz noted,
inter alia, that Ms. Sanchez’s neck was supple without significant lymphadenopathy or
thyromegaly. (Id.) Dr. Ortiz also noted that Ms. Sanchez’s extremities showed no cyanosis,
clubbing or edema, and that her reflexes and gait were normal. (Tr. 480.) Dr. Ortiz assessed
8
Dr. Kassicieh’s records are illegible for the most part.
9
Because Dr. Kassicieh’s records are illegible, it is not clear what, if any, medications he prescribed.
10
There are no physical exam findings for the other five visits.
8
hypertension and “myalgia and myositis unspecified,” and increased her hydrocodone to twice
daily. (Id.)
On March 11, 2010, Ms. Sanchez saw Dr. Ortiz for follow up and reported that the
increased hydrocodone was not helping. (Tr. 478.) She said that she had been helped more in
the past with oxycodone. (Id.) Ms. Sanchez denied, inter alia, any dizziness or focal weakness
or loss of sensation. (Id.) On physical exam, Dr. Ortiz noted, inter alia, that Ms. Sanchez’s neck
was supple without significant lymphadenoapathy or thyromegaly. (Id.) Dr. Ortiz also noted
that her extremities showed no cyanosis, clubbing or edema, and that her reflexes and gait were
normal. (Id.) Dr. Ortiz prescribed Ms. Sanchez with oxycodone, twice daily, to control her
reported pain. (Tr. 479.)
On April 8, 2010, Ms. Sanchez saw Dr. Ortiz and reported no concerns, except that her
pain was not controlled with the twice daily dosing of oxycodone. (Tr. 477.) Ms. Sanchez
denied, inter alia, any dizziness or focal weakness or loss of sensation. (Id.) Dr. Ortiz’s physical
exam remained the same. (Id.) Dr. Ortiz increased oxycodone to three times daily, and added
Tramadol three times daily. (Tr. 478.)
On October 29, 2010, Ms. Sanchez presented to Dr. Ortiz for prescription refills. (Tr.
475-76.) She reported having breakthrough pain and requested oxycodone four times daily. (Tr.
476.) Ms. Sanchez denied, inter alia, any dizziness or focal weakness or loss of sensation. (Id.)
Dr. Ortiz’s physical exam was unchanged. (Id.) Dr. Ortiz increased oxycodone to four times
daily and added Cyclobenzaprine one time daily. (Id.)
On May 13, 2011, Ms. Sanchez presented to Dr. Ortiz and reported her pain was worse
and she needed oxycodone five times daily. (Tr. 474.) Ms. Sanchez denied, inter alia, any
dizziness or focal weakness or loss of sensation. (Id.) On physical exam, Dr. Ortiz noted, inter
9
alia, that Ms. Sanchez’s neck was supple, her gait was normal, and that she had no strength,
sensory or motor deficits in her upper or lower extremities. (Id.) Dr. Ortiz increased oxycodone
to five times daily. (Id.)
On October 28, 2011, Ms. Sanchez saw Dr. Ortiz and reported that her pain was
increasing, that it was harder to ambulate, and that at times the pain radiated into her right leg.
(Tr. 512-13.)
Ms. Sanchez denied, inter alia, any dizziness or focal weakness or loss of
sensation. (Tr. 512.) On physical exam, Dr. Ortiz noted, inter alia, that Ms. Sanchez’s neck was
supple, her gait was normal, and that she had no strength, sensory or motor deficits in her upper
or lower extremities. (Id.) Dr. Ortiz continued oxycodone five times daily and increased
Tramadol to two tablets, three times daily. (Tr. 513.)
On December 15, 2011, Ms. Sanchez presented to Dr. Ortiz for follow up on chronic
pain. (Tr. 510-11.) Ms. Sanchez denied, inter alia, any dizziness or focal weakness or loss of
sensation. (Tr. 510.) Dr. Ortiz’s physical exam demonstrates, inter alia, that Ms. Sanchez’s neck
was supple, her gait was normal, and that she had no strength, sensory or motor deficits in her
upper or lower extremities. (Id.) Dr. Ortiz instructed Ms. Sanchez to continue on her current
medications. (Tr. 511.)
On March 6, 2012, Ms. Sanchez saw Dr. Ortiz for follow up on chronic pain. (Tr. 53435.) Ms. Sanchez denied, inter alia, any dizziness or focal weakness or loss of sensation. (Tr.
534.) On physical exam, Dr. Ortiz noted that Ms. Sanchez’s neck was supple, her gait was
normal, and that she had no strength, sensory or motor deficits in her upper or lower extremities.
(Id.) Dr. Ortiz also noted that Ms. Sanchez’s drug screen was positive for opiates, negative for
prescribed oxycodone, and positive for cocaine. (Id.) Ms. Sanchez admitted using cocaine over
10
the weekend. (Tr. 535.) Dr. Ortiz informed Ms. Sanchez that he would no longer be able to
prescribe her controlled medications. (Id.)
c.
Craig S. Nairn, M.D.
On December 16, 2011, Ms. Sanchez presented to Craig S. Nairn, M.D., and complained
of lower back pain. (Tr. 518-19.) She described pain in both her lower back and neck, and
reported a history of fibromyalgia. (Tr. 518.) Ms. Sanchez told Dr. Nairn that she had a lumbar
fusion years ago which did not help and that her only treatment had been medications. (Tr. 518.)
Ms. Sanchez told Dr. Nairn that she had not had any treatment for her neck. (Id.) Ms. Sanchez
also told Dr. Nairn that she was on disability because of her pain. (Id.) On Dr. Nairn’s review of
systems, Ms. Sanchez affirmed, inter alia, insomnia, dizziness, memory loss “sometimes,”
depression and anxiety, joint pain and weakness, and muscle weakness. (Tr. 518-19.) On
physical exam, Dr. Nairn noted that Ms. Sanchez’s neck had limited range of motion and side
bending, and right-sided tenderness on palpation. (Tr. 518.) He also noted that Ms. Sanchez
indicated midline vertebral tenderness on palpation, but that her lower back exam was otherwise
normal.
(Tr. 519.)
Dr. Nairn assessed post-laminectomy syndrome, axial neck pain, and
fibromyalgia. (Id.) He ordered an MRI scan to investigate the source of Ms. Sanchez’s neck and
lower back pain, and instructed her to continue on her medication management for fibromyalgia.
(Id.) Dr. Nairn indicated he could consider a rheumatology referral in the future to confirm the
fibromyalgia diagnosis and optimize treatment. (Id.)
On January 27, 2012, Ms. Sanchez returned to Dr. Nairn for follow up and to discuss the
MRI results. (Tr. 515-16.) Ms. Sanchez reported continued pain in her lower back with
radiation to her hips and legs, somewhat worse on the right side, and pain in her midback and
neck. (Tr. 515.) She denied any new or progressive numbness or weakness. (Id.) On physical
11
exam, Dr. Nairn noted that Ms. Sanchez’s neck had limited range of motion and side bending,
and right-sided tenderness on palpation. (Id.) He also noted that Ms. Sanchez indicated midline
vertebral tenderness on palpation, but that her lower back exam was otherwise normal. (Id.)
Dr. Nairn discussed with Ms. Sanchez that her MRI results were essentially normal, and that he
thought her neck and upper back pain were probably associated with fibromyalgia or soft tissue
injury.
(Id.)
However, because the MRI demonstrated stenosis at L4-5 and associated
degenerative changes at L5-S1, Dr. Nairn recommended a lumbar epidural. (Tr. 516.)
d.
The ALJ Properly Evaluated the Treating Physicians’
Treatment Notes
The Social Security Act provides that, in considering whether a person is disabled under
Title II, “[o]bjective medical evidence of pain or other symptoms established by medically
acceptable clinical or laboratory techniques ... must be considered in reaching a conclusion as to
whether the individual is under a disability.”
42 U.S.C. § 423(d)(5)(A) (Supp. IV 1986)
(emphasis added). Thus, the Act makes clear that the Secretary must consider all relevant
medical evidence of record in reaching a conclusion as to disability. See Ray v. Bowen, 865 F.2d
222, 226 (10th Cir. 1989) (“[t]he ALJ must determine the claimant's eligibility for disability
benefits in light of the entire record”); Herbert v. Heckler, 783 F.2d 128, 130 (8th Cir. 1986) (it is
insufficient that there are inconsistencies in objective medical evidence to support the Secretary's
denial of benefits, “[t]he Secretary must demonstrate that she evaluated all the evidence”).
The ALJ properly evaluated the treatment notes of Ms. Sanchez’s treating physicians
during the relevant period of time.11 As an initial matter, none of Ms. Sanchez’s treating
physicians provided medical opinions.
11
The ALJ discussed treatment notes from Carlos J. Esparza, M.D.; however, she properly noted that his treatment
notes were dated well after Ms. Sanchez’s date of last insured. (Tr. 19-20.) See Baca v. Dep’t of Health and Human
Servs., 5 F.3d 476, 479 (10th Cir. 1993) (explaining that while medical evidence after the date of last insured status
12
Medical opinions are statements from an acceptable medical source that reflect
judgments about the nature and severity of [a claimant’s] impairments, including
[a claimant’s] symptoms, diagnosis and prognosis, what [a claimant] can still do
despite impairment(s), and [a claimant’s] physical or mental restrictions.
20 C.F.R. 404.1527(a)(1).12 As such, Ms. Sanchez’s argument that the ALJ was required to
evaluate and weigh Ms. Sanchez’s treating physicians’ treatment notes by applying the specific
factors when evaluating medical opinion evidence (Doc. 23 at 6) is misplaced. Id. Moreover,
the ALJ discussed and evaluated Dr. Ortiz’s and Dr. Nairn’s treatment notes in her step four
analysis, as she was required to do.13 (Tr. 17-19.) In doing so, the ALJ accurately noted that
Dr. Ortiz’s physical examinations were essentially normal, and that although Dr. Nairn’s
physical exams revealed some tenderness on palpation and limited range of motion in
Ms. Sanchez’s neck, they were otherwise normal as well. (Tr. 17-18.) The Court’s review of the
medical evidence record demonstrates the ALJ’s findings are supported by substantial evidence.
Dr. Ortiz noted in all eight of his treatment notes that Ms. Sanchez denied any dizziness or focal
motor weakness or loss of sensation. (Tr. 474, 475-76, 477-78, 478, 479-80, 510-11, 512-13,
534-35.) Dr. Ortiz further noted at every visit that Ms. Sanchez’s gait was normal. (Id.)
Dr. Ortiz also specifically noted in four of his eight treatment notes that Ms. Sanchez had no
may be relevant, the key is that the subsequent evidence bears upon the severity of the claimant’s impairments
during the period between the onset date and the last insured status date); see also Hargis v. Sullivan, 945 F.2d 1482,
1493 (10th Cir. 1991) (finding that proffered evidence must relate to the time period of which the benefits are
denied).
12
For all claims filed on or after March 27, 2017, 20 C.F.R. § 404.1527 was rescinded and replaced with 20 C.F.R.
§ 404.1520c. 82 Fed. Reg. 5844, 5869. Further, the Social Security Administration rescinded SSR 96-2p effective
March 27, 2017, to the extent it is inconsistent with or duplicative of final rules promulgated related to Giving
Controlling Weight to Treating Source Medical Opinions found in 20 C.F.R. § 404.1527. 82 Fed. Reg. 5844, 5845.
13
The ALJ did not discuss Dr. Kassicieh’s treatment notes. However, the Court is persuaded this is harmless
because Dr. Kassicieh’s did not provide a medical opinion and his treatment notes (to the extent they are legible) do
not support greater limitations than those assessed by the ALJ. See generally Mays v. Colvin, 739 F.3d 569, 578
(10th Cir. 2014) (the need for express analysis is weakened “[w]hen the ALJ does not need to reject or weigh
evidence unfavorably in order to determine a claimant’s RFC.”) (quoting Keyes-Zachary v. Astrue, 695 F.3d 1156,
1161 (10th Cir. 2012)).
13
strength, sensory or motor deficits in her upper or lower extremities. (Tr. 474, 510-11, 512-13,
534-35.) Similarly, Dr. Nairn’s two exams were essentially normal, but for some tenderness on
palpation and limited range of motion in Ms. Sanchez’s neck.14
(Tr. 508-09, 515-16.)
Ms. Sanchez’s argument that her treating physicians’ treatment notes support her alleged claims
that she could not walk without limping and losing her balance, or that her leg goes to sleep
when sitting or standing in one position for too long, or that she becomes dizzy when she moves
her head a certain way is without merit. The ALJ properly evaluated Ms. Sanchez’s treating
physicians’ treatment notes and her findings are supported by substantial evidence.
2.
ALJ Findings
Ms. Sanchez next argues that the ALJ’s evaluation of the medical evidence is not
supported by substantial evidence because (1) the ALJ “play[ed] doctor” when she characterized
Ms. Sanchez’s MRI findings as showing “minor” bilateral neuroforaminal encroachment;
(2) Dr. Nairn’s treatment notes supported Ms. Sanchez’s claim of manipulative limitations;15
(3) the ALJ improperly relied on Dr. Ortiz’s normal motor and gait findings contrary to SSR 122p;16 (4) the ALJ failed to discuss Dr. Ortiz’s myalgia diagnosis and medication treatment for
pain; and (5) the ALJ improperly characterized Ms. Sanchez’s October 2014 MRI findings as
“mild.” (Doc. 23 at 10-11.)
Ms. Sanchez’s argument essentially asks the Court to reweigh the evidence, which the
Court will not do, and is, in any event, without merit. See Oldham v. Astrue, 509 F.3d 1254,
14
Ms. Sanchez states that Dr. Nairn diagnosed fibromyalgia; however, this is misleading. (Doc. 23 at 8.) Dr. Nairn
included a diagnosis of fibromyalgia in his assessment based solely on Ms. Sanchez’s reported history. He
specifically noted that he might consider a rheumatology referral in the future to confirm the diagnosis. (Tr. 51516.)
15
Ms. Sanchez does not identify what manipulative limitations she alleges Dr. Nairn’s findings support.
16
SSR 12-2p, 2012 WL 3104869 (Evaluation of Fibromyalgia).
14
1257-58 (10th Cir. 2007 (“We review only the sufficiency of the evidence, not its weight . . .
Although the evidence may also have supported contrary findings, we may not displace the
agency’s choice between two fairly conflicting views . . . .”).
First, the MRI findings
Ms. Sanchez refers to specifically state “[t]here is minor L4 neuroforaminal encroachment
bilaterally.”17 (Tr. 522.) (Emphasis added.) As such, the ALJ did not play doctor, substitute her
lay opinion, or make an improper speculative inference because she repeated the radiologist’s
findings verbatim. (Compare Tr. 19 and Tr. 522.) Second, although Dr. Nairn’s physical exams
demonstrated limited range of motion in Ms. Sanchez’s neck, Dr. Nairn’s treatment notes do not
assess any manipulative functional limitations18 as a result.19 (Doc. 508-09, 515-16.) Third, the
ALJ’s reliance on Dr. Ortiz’s normal exams to find that Ms. Sanchez was not impaired to the
degree she alleged was proper and not contrary to SSR 12-2p because the ALJ’s finding that the
medical evidence record does not support Ms. Sanchez’s self-reported fibromyalgia diagnosis is
supported by substantial evidence. (Tr. 13.) Fourth, the ALJ did discuss that despite Dr. Ortiz’s
normal exams, he nonetheless prescribed oxycodone to deal with her pain. (Tr. 17.) Fifth, the
ALJ properly characterized the October 2014 MRI findings,20 and properly noted that the study
17
Dr. Nairn discussed the MRI lumbar spine findings with Ms. Sanchez and said they showed “stenosis at L4-5
associated degenerative changes and postoperative changes as well as some granulation tissue at L5-S1.” (Tr. 51516.) He recommended an epidural. (Tr. 516.)
18
Manipulative Limitations include reaching all directions (including overhead); handling (gross manipulation);
fingering (fine manipulation); and feeling (skin receptors). (Tr. 468.)
19
Dr. Nairn discussed the MRI cervical spine findings with Ms. Sanchez and characterized them as “essentially
normal.” (Tr. 515.)
20
The report states at S1-2: postsurgical change with extensor muscle atrophy, no stenosis; at L5-S1: postsurgical
change with extensor muscle atrophy greater on the right, mild bilateral neural foraminal stenosis and exiting nerve
abutment, no disc herniation; L4-5: grade 1 anterolisthesis with mild loss of disc height, moderate facet and
ligamentous hypertrophy and mild facet capsulitis, moderate bilateral neural foraminal, central canal and lateral
recess stenosis with moderate existing and descending nerve impingement; L3-4: mild retrolisthesis, mild leftward
disc protrusion, mild facet hypertrophy and bilateral facet capsulitis; mild left neural foraminal stenosis and exiting
nerve abutment; L2-3: mild loss of disc height, retrolisthesis and disc protrusion with mild facet hypertrophy but no
stenosis or impingement; L1-2: mild loss of disc height and minimal disc protrusion with mild facet arthrosis but no
stenosis; mild SI joint arthrosis. (Tr. 576.) (Emphasis added.)
15
was performed well after the date last insured expired.21 (Tr. 20, 576.) The ALJ’s findings
regarding the medical evidence are supported by substantial evidence.
3.
Louis Wynne, Ph.D.
On June 22, 2011, Ms. Sanchez presented to Louis Wynne, Ph.D., for a mental status
exam. (Doc. 485-87.)
Dr. Wynne noted that Ms. Sanchez’s affect was open and congruent,
with a dysphoric mood. (Tr. 485.) He further noted that she maintained good eye contact and
related easily, but that her cooperation was limited by her low level of intellectual functioning.
(Id.)
Ms. Sanchez reported medical conditions of arthritis, fibromyalgia, and breathing
difficulties NOS. (Tr. 486.) She also reported using a cane and wearing braces on both her
wrists as needed. (Id.)
On questioning, Ms. Sanchez denied any contact with mental health professionals,
psychotic episodes, unwanted behaviors, inpatient psychiatric admissions, overdoses, or any
episodes of self-injury. (Doc. 486.) She denied the use of tobacco, alcohol, and any other
substance abuse. (Id.) She reported she last worked as a maid and janitor and that it was “a long
time ago.” (Id.) Ms. Sanchez stated she was unable to remember where she was born, any of her
childhood achievements or developmental milestones,22 or her parents’ circumstances at the time
she was born; i.e., where her father worked and whether she and her mother went home from the
hospital together. (Tr. 486.) She could not remember her height or weight. (Tr. 485.) She also
could not remember the name of her oldest daughter’s father. (Tr. 487.) She reported that her
parents and four of her seven siblings were deceased, but could not provide any details. (Id.)
Dr. Wynne concluded that Ms. Sanchez’s ability to present a plausible, detailed, and
21
See fn. 4, supra.
22
Ms. Sanchez reported she completed the eighth grade in special education. (Tr. 486.)
16
comprehensive personal history was impaired, and that the information she provided should be
verified before any reliance was placed on it. (Tr. 486.)
On exam, Dr. Wynne noted that Ms. Sanchez could not copy a pair of intersecting
pentagons or remember and carry out a written three-part set of directions. (Tr. 485-86.) She
could not count backwards from 100 either by threes or by sevens, and she could not remember a
set of digits forwards even to three. (Tr. 486.) She could not remember a set of digits backwards
even to two. (Id.) She could not spell a common five-letter word forwards and her short-term
memory for both items and words was severely impaired.
(Id.)
Dr. Wynne noted that
Ms. Sanchez’s performance of operations in simple mental arithmetic was also impaired. (Id.)
Dr. Wynne further noted that her judgment, based on her answers to Wechsler Adult Intelligence
Scale-type comprehension questions, was impaired. (Id.)
Dr. Wynne’s Summary and Clinical Impressions were as follows:
The following impressions are based on my estimation of the claimant’s
psychological condition and not on any medical limitations that might be present.
Joann Sanchez is a 54-year-old woman who looked her age. Her cooperation with
this examination was limited by her low level of intellectual functioning but there
is no reason to suspect malingering or dissimulation.
She cannot remember and carry out basic written instructions and her
concentration and ability to persist at simple work tasks are severely impaired.
She could not interact well with the general public, her coworkers, or her
supervisors. She also would have difficulty adapting to changes in the workplace.
She might not be able to recognize even obvious hazards and she could not
manage her own benefit payments.
(Tr. 487.) Dr. Wynne’s Axis II23 diagnoses were borderline intellectual functioning and r/o mild
mental retardation. (Tr. 487.) He assessed a GAF score of 40.24 (Id.)
23
Axis
II
is
the
assessment
of
personality
disorders
and
intellectual
disabilities.
http://www.psyweb.com/DSM_IV/jsp/dsm_iv.jsp These disorders are usually life-long problems that first arise in
childhood. Id.
17
The ALJ accorded Dr. Wynne’s opinion little weight for several reasons. (Tr. 21.) First,
the ALJ explained that Dr. Wynne’s functional assessment was not supported by the record as a
whole. (Id.) Second, she explained that Dr. Wynne based his functional assessment on a
one-time evaluation, which is only a snapshot of the claimant’s overall functional capacity. (Id.)
Third, she explained that Dr. Wynne based his functional assessment on claimant’s self-reports
and subjective allegations, which the ALJ determined were not credible. (Id.) Fourth, the ALJ
explained that Ms. Sanchez did not claim any mental condition as a basis for her disability. (Id.)
Ms. Sanchez argues that the ALJ’s explanations are either not supported by substantial evidence
or are improper. (Doc. 23 at 12-15.) The Court disagrees.
“An ALJ must evaluate every medical opinion in the record, although the weight given
each opinion will vary according to the relationship between the disability claimant and the
medical professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).
Specifically,
when assessing a claimant’s RFC, an ALJ must explain what weight is assigned to each opinion
and why. SSR 96-5p, 1996 WL 374183 at *5.25 “An ALJ must also consider a series of specific
factors in determining what weight to give any medical opinion.” Hamlin, 365 F.3d at 1215
(citing Goatcher v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir.
24
A GAF score is a subjective rating on a one hundred point scale, divided into ten numerical ranges, which permits
clinicians to assign a single ranged score to a person's psychological, social, and occupational functioning. See Am.
Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders, 32, 34 (4th ed. 2000). A GAF score of 3140 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school). Id. at 34.
25
The Social Security Administration rescinded SSR 96-5p effective March 27, 2017, only to the extent it is
inconsistent with or duplicative of final rules promulgated related to Medical Source Opinions on Issues Reserved to
the Commissioner found in 20 C.F.R. §§ 404.1520b and 404.1527 and applicable to claims filed on or after
March 27, 2017. 82 Fed. Reg. 5844, 5845, 5867, 5869.
18
1995)).26 An ALJ need not articulate every factor. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007). Generally the opinion of a treating physician is given more weight than that of an
examining consultant, and the opinion of a non-examining consultant is given the least weight of
all. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). Ultimately, ALJs are required
to weigh medical source opinions and to provide “appropriate explanations for accepting or
rejecting such opinions.” SSR 96-5p, 1996 WL 374183 at *5 (emphasis added); see KeyesZachary v Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citing 20 C.F.R. § 416.927(e)(2)(ii))).
The ALJ’s decision for according weight to medical opinions must be supported by substantial
evidence. Hackett v. Barnhart, 395 F.3d 1168, 1174 (10th Cir. 2005).
The ALJ provided appropriate explanations for the weight she accorded Dr. Wynne’s
functional assessment that are supported by substantial evidence, and correctly determined that
the record does not support the degree of limitation Dr. Wynne assessed. (Tr. 21.)
a.
The ALJ Properly Found That Dr. Wynne’s Functional
Assessment Was Inconsistent With the Record As a
Whole
Here, the record supports that Ms. Sanchez reported and testified she completed the
eighth grade.27 (Tr. 42, 72, 293.) As the ALJ noted, however, there is conflicting evidence
whether Ms. Sanchez attended special education classes.28 (Tr. 15.) Ms. Sanchez testified that
26
These factors include the examining relationship, treatment relationship, length and frequency of examinations,
the degree to which the opinion is supported by relevant evidence, the opinion’s consistency with the record as a
whole, and whether the opinion is that of a specialist. See 20 C.F.R. § 404.1527(c)(2)-(6) (evaluating opinion
evidence for claims filed before March 27, 2017).
27
The Social Security Administration generally considers that a 7th through the 11th grade level of formal education
is a limited education. 20 C.F.R. § 404.1564(b)(3). “Limited education means ability in reasoning, arithmetic, and
language skills, but not enough to allow a person with these educational qualifications to do most of the more
complex job duties needed in semi-skilled or skilled jobs.” Id.
28
When asked on her application whether she attended special education classes, Ms. Sanchez reported “no.” (Tr.
293.) Ms. Sanchez, however, testified at her first administrative hearing that she attended special education classes,
and reported to Dr. Wynne that she attended special education classes. (Tr. 72, 486.)
19
she is only able to read short lists, magazines and children’s books, and that she can only write a
“little bit.”29 (Tr. 42-43, 72-73.) That said, the ALJ properly explained that the record does not
support the level of cognitive impairment Dr. Wynne assessed. For example, the ALJ discussed
that Ms. Sanchez was initially laid off from her products assembler job due a change in
management, but was then called back and returned to work, demonstrating her ability to meet
the demands of the job.30 (Tr. 22.) The ALJ discussed that when Ms. Sanchez stopped working
as a products assembler the second time, she testified it was due to her alleged physical
impairments. (Tr. 22.) The ALJ discussed that Dr. Wynne himself observed Ms. Sanchez had
good eye contact, related easily, and was cooperative and pleasant. (Tr. 14.) The ALJ discussed
that Ms. Sanchez reported that she had no difficulty getting along with others, including
authority figures, and that she had never been fired from a job due to an inability to get along
with others. (Id.)
The ALJ discussed that Ms. Sanchez testified that when she previously
received Social Security benefits, they were mailed directly to her and that she deposited them
into her own bank account. (Tr. 15.) The ALJ discussed that Ms. Sanchez testified she had no
difficulty dealing with the bank. (Id.) The ALJ also discussed that Ms. Sanchez was able to
negotiate the settlement of an overpayment with the Social Security Administration related to her
earlier disability claim. (Tr. 21.) The record supports these findings. (Tr. 46, 57, 76-77, 92, 94,
349-50, 485.)
The Court’s review of the records further demonstrates that at the administrative hearings
in this matter, Ms. Sanchez knew the date she was born, testified about her height and weight,
accurately remembered her most recent employment and the year she stopped working, knew her
29
Ms. Sanchez testified at the October 2, 2012, Administrative Hearing that she could only write her name. (Tr. 7272.)
30
Ms. Sanchez worked as a small products assembler from December 1999 until August 2007. (Tr. 298.)
20
address, described her job as a products assembler, described her medical impairments and
alleged problems with functioning, and knew the names of her medications. (Tr. 42-59, 72-94.)
She also reported to State agency examining medical consultant Dr. Karl Moedl that her father
died of hypertension and obesity, and her mother died of rectal cancer. (Tr. 457.) Although
Ms. Sanchez argues that Dr. Wynne’s functional assessment is consistent with the record
because several doctors treating Ms. Sanchez for back pain mentioned her depression and
anxiety, Ms. Sanchez cites only one record during the relevant period of time wherein Dr. Nairn
noted that Ms. Sanchez self-reported depression and anxiety. (Doc. 23 at 14.) That aside,
Ms. Sanchez’s argument overlooks that Dr. Wynne did not diagnose either depression or anxiety,
but instead based his functional assessment on Ms. Sanchez’s borderline intellectual functioning.
(Tr. 487.)
For the foregoing reasons, the ALJ’s explanation that Dr. Wynne’s functional assessment
was not consistent with the record as a whole is supported by substantial evidence and is a
legitimate reason for discounting his opinion. See 20 C.F.R. § 1527(c)(4) (explaining that the
more consistent a medical opinion is with the record as a whole, the more weight will be given to
that medical opinion).
b.
The ALJ Properly Explained Dr. Wynne’s Examining
Relationship With Ms. Sanchez
The ALJ explained that she accorded less weight to Dr. Wynne’s functional assessment
because it was a “one-time evaluation, which is only a snapshot of the claimant’s overall
functional capability.” (Tr. 21.) In Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), the ALJ
rejected a consultative examiner’s opinion solely on the basis of the limited treatment
relationship. 682 F.3d at 1291. The Tenth Circuit held that this explanation by itself was not a
proper basis for rejecting a consultative exam because “otherwise the opinions of consultative
21
examiners would essentially be worthless, when in fact they are often fully relied on as the
dispositive basis for RFC findings.” Id. In contrast, the ALJ here provided this reason as one of
several reasons for according little weight to Dr. Wynne’s functional assessment. In the context
of his complete analysis, the ALJ’s explanation that Dr. Wynne’s treatment relationship was
limited to one consultative exam is a legitimate reason for according less weight to his opinion.
See 20 C.F.R. § 1527(c)(2) (explaining that the more times you have been seen by a treating
source, the more weight will be given to that medical opinion); see generally Thomas v.
Berryhill, 685 F. 659, 662-63 (10th Cir. 2017) (unpublished)31 (finding the ALJ properly
accorded less weight to medical opinion where consultative examiner did not review the entire
medical record); see also 20 C.F.R. 404.1527(c)(6) (explaining that the extent to which a medical
source is familiar with the other information in your case record is a relevant factor in deciding
the weight to give a medical opinion.)
c.
The ALJ Properly Discounted Dr. Wynne’s Functional
Assessment to the Extent He Relied On What
Ms. Sanchez Told Him and the ALJ Found Not
Credible
Ms. Sanchez argues that the ALJ ignored Dr. Wynne’s “clinical findings” and GAF score
when she determined that his findings were based on Ms. Sanchez’s subjective allegations,
which she found not credible. (Doc. 23 at 14.) However, the ALJ did discuss Dr. Wynne’s
findings from the mental status exam and the GAF score (Tr. 20-22), and determined that
Dr. Wynne’s functional assessment was inconsistent with the record as a whole. See Section
III.A.2.a., supra.
Thus, contrary to Ms. Sanchez’s argument, the ALJ did not ignore
31
Unpublished decisions are not binding precedent in the Tenth Circuit, but may be cited for their persuasive value.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).
22
Dr. Wynne’s findings. Having found Ms. Sanchez not credible,32 however, the ALJ could
discount Dr. Wynne’s findings to the extent that they were based on what Ms. Sanchez told him
that was not consistent with the record as a whole. Beard v. Colvin, 642 F. App’x 850, 852 (10th
Cir. 2016) (unpublished); see also Hackett v. Barnhart, 395 F.3d 1168, 1174 (10th Cir. 2005)
(finding the ALJ was free to reject a treating psychologist’s opinion where it appeared to be
based on subjective complaints and isolated instances “rather than objective findings”). This is a
legitimate explanation for according Dr. Wynne’s opinion less weight. Id.
d.
The ALJ Properly Considered Ms. Sanchez’s Mental
Impairment Even Though She Did Not Allege It As A
Basis for Her Disability Claim
Ms. Sanchez argues that the ALJ erred in relying on the fact that she did not base her
disability claim on any mental impairments as a basis for rejecting mental impairment evidence
and finding her not disabled.
(Doc. 23 at 14.)
This argument misunderstands the ALJ’s
reasoning. In fact, the ALJ explained that Ms. Sanchez did not allege a mental impairment either
initially or at reconsideration, and denied any mental condition, including emotional or learning
problems,33 but that the Social Security Administration had referred Ms. Sanchez for a
psychological consultative exam based on evidence in the original record that did not pertain to
her.34 (Tr. 20, 125.) The record supports these findings. (Tr. 292, 295, 332.) Nonetheless, the
ALJ properly considered Dr. Wynne’s findings at step two and step four of her analysis as she
was required to do (Tr. 13-15, 16-22). See Wells v. Colvin, 727 F.3d 1061, 1068 (10th Cir. 2013)
(describing the ALJ’s responsibility to evaluate mental impairments at step two and step four of
32
Ms. Sanchez has raised no objection to the ALJ’s findings regarding the inconsistency of Ms. Sanchez’s statement
to Dr. Wynne with the record as a whole.
33
Ms. Sanchez reported that she had not sought medical treatment for any mental condition (including emotional or
learning problems). (Tr. 295.)
34
The records at issue documented an emergency room visit for an anxiety attack. (Tr. 20.) The records were
subsequently removed from Ms. Sanchez’s folder. (Id.)
23
the sequential evaluation process). The ALJ appropriately addressed Ms. Sanchez’s mental
impairment even though Ms. Sanchez did not allege it as a basis for her disability claim. There
is no error as to this issue.
For all of the foregoing reasons, the Court finds that the ALJ properly evaluated
Dr. Wynne’s opinion and provided legitimate reasons for according it little weight that are
supported by substantial evidence.
4.
State Agency Nonexamining Psychological
Madelyn Miranda-DeCollibus, Psy.D.
Consultant
On July 7, 2011, State agency nonexamining psychological consultant Madelyn MirandaDeCollibus, Psy.D., reviewed Ms. Sanchez’s medical records and prepared a Psychiatric Review
Technique35 and a Mental Residual Functional Capacity Assessment (“MRFCA”). (Tr. 488-501,
502-04.) In Section I of the MRFCA, Dr. Miranda-DeCollibus assessed that Ms. Sanchez was
not significantly limited in her ability (1) to remember locations and work-like procedures; (2) to
understand and remember very short and simple instructions; (3) to carry out very short and
simple instructions; (4) to perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances; (5) to sustain an ordinary routine without special
supervision; (6) to work in coordination with or proximity to others without being distracted by
them; (7) to make simple work-related decisions; (8) to interact appropriately with the general
public; (9) to ask simple questions or request assistance; (10) to accept instructions and respond
35
“The psychiatric review technique described in 20 CFR 440.1520a and summarized on the Psychiatric Review
Technique Form (PRTF) requires adjudicators to assess an individual’s limitations and restrictions from a mental
impairment(s) in categories identified in the “paragraph B” and “paragraph C” criteria of the adult mental disorders
listings. The adjudicator must remember that the limitations identified in the “paragraph B” and “paragraph C”
criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the
sequential evaluation process.” SSR 96-8p, 1996 WL 374184, at *4. Dr. Miranda-DeCollibus rated Ms. Sanchez as
having moderate functional limitations in her activities of daily living, mild functional limitations in maintaining
social functioning, moderate limitations in maintaining concentration, persistence or pace, and no episodes of
decompensation. (Tr. 498.)
24
appropriately to criticism from supervisors; (11) to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; (12) to maintain socially appropriate
behavior and to adhere to basic standards of neatness and cleanliness; and (13) to be aware of
normal hazards and take appropriate precautions. (Tr. 502-03.) Dr. Miranda-DeCollibus also
assessed that Ms. Sanchez was moderately limited in her ability to (1) understand and remember
detailed instructions; (2) to carry out detailed instructions; (3) to maintain attention and
concentration for extended periods; (4) to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
an unreasonable number and length of rest periods; (5) to respond appropriately to changes in the
work setting; (6) to travel in unfamiliar places or use public transportation; and (7) to set realistic
goals or make plans independent of others.
(Id.) In Section III of the MRFCA, Dr. Miranda-
DeCollibus concluded that
[t]he claimant’s ability to understand an[d] remember complex or detailed
instructions is limited, however, she can be expected to understand, remember and
carry out simple instructions which are presented orally. Basic memory processes
reveal moderate limitations. She can perform work in a stable environment.
Moreover, she is capable of working within a work schedule and at a consistent
pace from a psych perspective. She would be able to maintain regular attendance
and be punctual. Also, the claimant would not require special supervision in
order to sustain a simple and repetitive work routine.
Due to the presence of anxiety and low intellectual functioning, [claimant] may be
moderately limited in responding appropriately to changes in the work setting and
traveling in unfamiliar places. She would require assistance to set realistic goals
and make plans independently of others. [Claimant] is better suited for work in
stable, routine environment.
The claimant is able to meet the basic demands in simple repetitive work on a
sustained basis despite the limitations resulting from any impairment.
(Tr. 504.) The ALJ, in turn, assessed that from a mental standpoint Ms. Sanchez
was able to understand, remember, and carry out simple instructions and to
maintain attention and concentration to perform simple tasks for two hours at a
25
time without requiring redirection to task. She required work involving no more
than occasional change in the routine work setting, and no more than occasional
independent goal setting or planning. Work was required to be routine, rote, and
repetitive.
(Tr. 16.)
Ms. Sanchez argues that the ALJ accorded significant weight to Dr. MirandaDeCollibus’s opinion, but failed to account for all of her Section I moderate limitations in the
RFC assessment, thereby engaging in inappropriate picking and choosing from her opinion.
(Doc. 23 at 15-16.)
Tenth Circuit case law requires ALJs to consider the entire MRFCA. See Nelson v.
Colvin, 655 F. App’x 626, 629 (10th Cir. 2016) (unpublished) (finding no reversible error
regarding the ALJ’s mental RFC assessment because the ALJ effectively accounted for all the
limitations indicated in Section I of the MRFCA) (emphasis in original); Lee v. Colvin, 631 F.
App’x 538, 541-42 (10th Cir. 2015) (finding no reversible error regarding the ALJ’s RFC
assessment because the ALJ did not ignore the Section I limitations and the RFC assessment
reflected the moderate limitations identified in Section I of the MRFCA); Carver v. Colvin, 600
F. App’x 616, 619 (10th Cir. 2015) (unpublished) (explaining that an ALJ cannot turn a blind eye
to moderate Section I limitations, and that if a consultant’s Section III narrative fails to describe
the effect of Section I limitations on a claimant’s ability, or contradicts certain Section I
limitations, the MRFCA cannot properly be considered part of the substantial evidence
supporting an ALJ”s RFC finding); see also Smith v. Colvin, 821 F.3d 1264, 1268-69 (10th Cir.
2016) (finding that an ALJ need not incorporate verbatim the moderate nonexertional limitations
26
found in Section I if the ALJ incorporates the functional aspects of a claimant’s nonexertional
limitations assessed in Section III).36
The ALJ’s RFC assessment sufficiently incorporated the functional aspects of
Ms. Sanchez’s nonexertional limitations assessed in Dr. Miranda-DeCollibus’s Section III
narrative.
Here, Dr. Miranda-DeCollibus applied her Section I findings and concluded in
Section III that Ms. Sanchez was functionally capable of meeting the basic mental demands of
simple repetitive work on a sustained basis despite the limitations resulting from any
impairment.37 The MRFCA is therefore considered part of the substantial evidence supporting
the ALJ’s RFC assessment. Carver, 600 F. App’x at 619. In turn, although the ALJ’s RFC
assessment did not repeat verbatim Dr. Miranda-DeCollibus’s Section III narrative, the ALJ’s
36
In Smith v. Colvin, the plaintiff argued that the ALJ erred in omitting moderate nonexertional impairments in
assessing her RFC. Specifically, one evaluation found the plaintiff to be moderately limited in her ability to
● maintain concentration, persistence and pace,
● remain attentive and keep concentration for extended periods,
● work with other without getting distracted,
● complete a normal workday and workweek without interruption from psychologically based symptoms,
● perform at a consistent pace without excessive rest periods,
● accept instructions and respond appropriately to criticism by supervisors,
● get along with coworkers or peers without distracting them or engaging in behavioral extremes,
● respond appropriately to changes in the workplace, and
● set realistic goals or independently plan.
Id. at 1268. Applying these assessments from Section I of the MRFCA, the nonexamining State agency medical
consultant found in Section III that the plaintiff could “(1) engage in work that was limited in complexity and
(2) manage social interactions that were not frequent or prolonged.” Id. The ALJ in Smith “arrived at a similar
assessment,” concluding that the plaintiff “could not engage in face to face contact with the public and could engage
in only simple, repetitive and routine tasks.” Id. at 1269. The Tenth Circuit found that, while the ALJ “did not
repeat the moderate limitations assessed by the doctors” he sufficiently “incorporated these limitations by stating
how the claimant was limited in the ability to perform work-related activities.” Id. The Tenth Circuit also clarified
that it is the narrative portion of the MRFCA form that controls the ALJ's assessment. Id. at n. 2.
37
“Work-related mental activities generally required by competitive, remunerative work include the abilities to:
understand, carry out, and remember instructions; use judgment in making work-related decisions; respond
appropriately to supervision, co-workers and work situations; and deal with changes in a routine work setting.”
SSR 96-8p, 1996 WL 374174, at *6. See also SSR 96-9p, 1996 WL 374185, at *9 (explaining that unskilled work
generally requires the ability to understand, remember and carry out simple instructions, make judgments that are
commensurate with the functions of unskilled work – i.e., simple work-related decisions; respond appropriately to
supervision, co-workers and usual work situations; and deal with changes in a routine work setting); see also POMS
DI 25020.010.B.3 (noting that the capacity to perform unskilled work includes ability to maintain attention for
extended periods of two-hour segments but that concentration is “not critical”).
27
RFC assessment nonetheless captured the essence of the consultants’ Section III assessments.
Id. at 620. Thus, Ms. Sanchez’s argument that the ALJ engaged in inappropriate picking and
choosing from Dr. Miranda-DeCollibus’s opinion necessarily fails. Additionally, Ms. Sanchez’s
argument that the ALJ should have accounted for every moderate limitation Dr. MirandaDeCollibus’s assessed in Section I also fails because her Section III narratives adequately
captured the limitations found in Section I, and the ALJ’s mental RFC adequately incorporated
the functional aspects of Ms. Sanchez’s nonexertional limitations assessed in the Section III
narratives. Smith, 821 F.3d at 1269. The ALJ properly applied the correct legal standards in
evaluating the medical evidence and her findings are supported by substantial evidence. As
such, there is no reversible error as to this issue.
B.
RFC Assessment
Ms. Sanchez argues that the ALJ’s RFC assessment failed to include certain limitations
that are supported by the medical evidence. (Doc. 23 at 16-21.) First, Ms. Sanchez argues that
the ALJ found Ms. Sanchez’s carpal tunnel syndrome and fibromyalgia to be nonsevere, but
failed to consider the effects of those impairments in her RFC assessment. (Id. at 17.) Second,
Ms. Sanchez argues that the ALJ failed to weigh State agency examining medical consultant
Dr. Karl Moedl’s examination findings and to include limitations from his findings in her RFC
assessment. (Id. at 17-9.) Third, Ms. Sanchez argues that the ALJ failed to develop the record
regarding her borderline intellectual functioning, and failed to include all of Dr. Wynne’s
findings regarding her mental limitations in her RFC assessment.
(Id. at 19-20.)
The
Commissioner contends that the ALJ reasonably found that through her date last insured
Ms. Sanchez had the RFC to do a reduced range of unskilled light work. (Doc. 25 at 8-17.)
28
Assessing a claimant’s residual functional capacity is an administrative determination left
solely to the Commissioner. 20 C.F.R. §§ 404.1546(c) (“If your case is at the administrative law
judge hearing level or at the Appeals Council review level, the administrative law judge or the
administrative appeals judge at the Appeals Council . . . is responsible for assessing your residual
functional capacity.”); see also SSR 96-5p, 1996 WL 374183, at *2 (stating that some issues are
administrative findings, such as an individual’s RFC). In assessing a claimant’s RFC, the ALJ
must consider the combined effect of all of the claimant’s medically determinable impairments,
whether severe or not severe, and review all of the evidence in the record. Wells v. Colvin, 727
F.3d 1061, 1065 (10th Cir. 2013); see 20 C.F.R. § 404.1545(a)(2) and (3). The ALJ must
consider and address medical source opinions and must always give good reasons for the weight
accorded to a treating physician’s opinion. 20 C.F.R. § 404.1527(c); SSR 96-8p, 1996 WL
374184, at *7. If the RFC assessment conflicts with an opinion from a medical source, the ALJ
must explain why the opinion was not adopted. SSR 96-8p, 1996 WL 374184 at *7. Most
importantly, the ALJ’s “RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.”
Wells, 727 F.3d at 1065 (quoting SSR 96-8p, 1996 WL 374184, at *7). When the ALJ fails to
provide a narrative discussion describing how the evidence supports each conclusion, citing to
specific medical facts and nonmedical evidence, the court will conclude that her RFC
conclusions are not supported by substantial evidence. See Southard v. Barnhart, 72 F. App’x
781, 784-85 (10th Cir. 2003). The ALJ’s decision must be sufficiently articulated so that it is
capable of meaningful review. See Spicer v. Barnhart, 64 F. App’x 173, 177-78 (10th Cir. 2003).
29
1.
Carpal Tunnel Syndrome and Fibromyalgia
The ALJ considered the combined effect of all of claimant’s medical determination
impairments. Ms. Sanchez incorrectly argues that the ALJ determined that Ms. Sanchez had
nonsevere impairments of carpal tunnel syndrome and fibromyalgia. (Doc. 23 at 17.) She did
not. The ALJ specifically determined that
the claimant has also alleged carpal tunnel syndrome and fibromyalgia, which has
caused significant difficulty using her hands due to numbness and pain, for which
she uses a brace at night, and severe fatigue. I find no conclusive diagnosis of
carpal tunnel syndrome or fibromyalgia in the record, prior to the date last
insured. As recently as December 1, 2014, nerve conduction studies showed no
evidence of carpal tunnel syndrome or peripheral neuropathy (Exhibit 19F/4).
Although there is mention of suspicion of fibromyalgia and referrals to a
rheumatologist to confirm the diagnosis of fibromyalgia, there is no indication
that she has followed through and as such, no confirmation of a diagnosis of
fibromyalgia (Exhibits 14F/3 and 15F/2, 6). Further, she stated that she is taking
Lyrica for fibromyalgia (Exhibits 23E/3); however, I see no evidence of this in the
medication ledgers in her doctor’s notes (Exhibits 9F and 14F/6). Accordingly,
pursuant to SSR 96-4, which states that an impairment cannot be considered a
medically determinable impairment based on the claimant’s subjective complaints
alone, without a diagnosis by an acceptable medical source, no matter how severe
the claimant’s subjective complaints. Thus, I find that her carpal tunnel
syndrome and fibromyalgia are not medically determinable impairments.
(Tr. 13.) (Emphasis added.) The record supports these findings. As such, the ALJ was not
required to consider Ms. Sanchez’s alleged carpal tunnel syndrome and fibromyalgia diagnoses
in her RFC assessment.
See 20 C.F.R. 404.1521 (explaining that a physical or mental
impairment must be established by objective medical evidence by an acceptable medical source
and claimant statements about a diagnosis cannot be used to establish an impairment).
2.
Dr. Karl Moedl
On August 19, 2010, Ms. Sanchez presented to State agency examining medical
consultant Dr. Karl Moedl for a physical exam. (Tr. 456-59.) She complained of lower back
30
pain that radiated down both her legs to her ankles, shoulder pain,38 severe knee pain, and neck
pain.39 (Tr. 456.) She also reported she was diagnosed with hypertension and fibromyalgia,40
and had pain “all over [her] body.” (Id.) On exam, Dr. Moedl noted that Ms. Sanchez was
unable to walk on her toes or heels, or squat, because of pain in her legs and severe obesity. (Tr.
457.) He noted that she was able to put her arms fully above her head, moving her shoulders, but
that she could only hold them there for a few seconds. (Tr. 458.) He noted that she was unable
to manipulate a small coin, but could fully extend and oppose her fingers, make a fist, and had
normal grip strength and sensory function. (Id.) Dr. Moedl noted that Ms. Sanchez had a full
range of motion in her lower extremities, but complained of severe pain in both knees. (Id.) He
observed that she walked with a cane and limped on her right knee. (Id.) He further noted that
she had chronic pain in the cervical spine and refused to test her forward or lateral flexion for
fear of falling. (Id.) Finally, he noted that Ms. Sanchez complained of severe dizziness during
the entire examination and was unable to stand with her eyes shut. (Id.) Dr. Moedl’s impressions
were (1) degenerative lumbar disk disease; (2) degenerative arthritis of the cervical spine with
limited motion; (3) alleged fibromyalgia; (4) degenerative arthritis of both knees; (5) morbid
obesity; (6) hypertension; and (7) dizziness during the exam. (Tr. 459.)
The ALJ properly evaluated Dr. Moedl’s report as she was required to do. The ALJ
thoroughly discussed and analyzed Dr. Moedl’s findings in her determination. (Tr. 18.) The
ALJ specifically stated that Dr. Moedl did not provide a functional assessment of Ms. Sanchez’s
38
Ms. Sanchez reported to Dr. Moedl that she woke up one day several years ago and had severe pain in her left
shoulder. (Tr. 456.) She stated that x-rays were taken at the time and she was told she had degenerative arthritis in
her shoulders. (Id.)
39
Ms. Sanchez reported to Dr. Moedl that she believes she has “some sort of cervical disk in her neck.” (Tr. 456.)
She stated that “they did recommend surgery at one time, but she refused.” (Id.)
40
Ms. Sanchez reported that she was diagnosed with fibromyalgia in 2004 and “they told her the trigger point was
both of her shoulders.” (Tr. 456.)
31
ability to do work-related physical activities, other than an inability to reach her arms above her
head.41 (Tr.18.) The ALJ observed that Dr. Moedl had no diagnostic radiologic or imaging
studies to rely on in making his impressions and that he relied heavily on Ms. Sanchez’s
subjective complaints to form his opinion.
(Tr. 18.)
The ALJ also noted that x-rays of
Ms. Sanchez’s cervical spine demonstrated Ms. Sanchez had a normal cervical spine. (Id.) The
ALJ further noted that Ms. Sanchez’s subjective complaints were not consistent with the clinical
and objective findings in the record, and in particular those of her treating physician, Dr. Ortiz.
(Id.) The record supports the ALJ’s findings.42 (Tr. 439, 475-76, 477-78, 478, 479-80, 521.)
The ALJ’s failure to assign a specific weight to Dr. Moedl’s report is harmless error. The
ALJ properly noted that Dr. Moedl did not provide a functional assessment of Ms. Sanchez’s
ability to do work-related physical activities. (Tr. 18.) Further, the ALJ was not required to
assign weight to Dr. Moedl’s narrative of statements by Ms. Sanchez or to Dr. Moedl’s exam
notes. See generally Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir. 2012) (finding that
the ALJ was not required to assign a weight to consultative examiner’s narrative of statements
relayed by claimant). The only statement that might be considered an “opinion” in Dr. Moedl’s
finding was that Ms. Sanchez could not reach overhead with both arms to do anything
meaningful.
The ALJ, however, clearly rejected Dr. Moedl’s exam findings and provided
explanations for doing so that are supported by substantial evidence. Thus, while the ALJ did
41
Dr. Moedl noted in his exam findings that although Ms. Sanchez could put her arms fully above her head, she
“really cannot reach above her head with both arms and do anything meaningful like hang a picture.” (Tr. 458.)
42
In the five months prior to Ms. Sanchez seeing Dr. Moedl, Ms. Sanchez saw her treating physician Dr. Ortiz three
times. (Tr. 477, 478, 479-80.) Ms. Sanchez’s only complaint was neck pain after suffering a fall. (Id.) Further,
Ms. Sanchez denied at every appointment that she had any dizziness or focal weakness. (Id.) Dr. Ortiz noted on
physical exam at each of these appointments that, inter alia, Ms. Sanchez’s neck was supple and that her gait was
normal. (Id.) In appointments in the months subsequent to Ms. Sanchez seeing Dr. Moedl, Ms. Sanchez again
denied that she had any dizziness or focal weakness. (Tr. 474-75, 475-76, 511, 512-13, 534-35.) Dr. Ortiz noted on
physical exams at each of these subsequent appointments that, inter alia, Ms. Sanchez’s neck was supple, and that
she had no strength, sensory or motor deficits in her upper or lower extremities. (Id.)
32
not assign a specific weight to Dr. Moedl’s one finding, the ALJ’s decision regarding her
evaluation of his exam findings is specific enough to make clear to the Court that she rejected
them. See generally Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) (finding the
ALJ’s decision must be specific enough to make clear to subsequent reviewers the weight given
to a medical source’s opinion and the reason for that weight). The Court finds no error in the
ALJ’s evaluation of Dr. Moedl’s report.
3.
The ALJ Did Not Fail to Develop the Record
Ms. Sanchez argues that the ALJ failed to develop the record based on Dr. Wynne’s
findings that Ms. Sanchez had borderline intellectual functioning and R/O mild mental
retardation.
(Doc. 23 at 20.)
Specifically, Ms. Sanchez argues that given Dr. Wynne’s
assessment of her ability to do work-related mental activities, she required a second consultative
examination for valid IQ testing to determine the severity of her psychiatric impairment. (Id., Tr.
378.)
The Commissioner “has broad discretion in ordering consultative examinations.”
Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997). A consultative examination is often
required for proper resolution of a disability claim where there is a direct conflict in the medical
evidence requiring resolution, or where the medical evidence in the record is inconclusive, or
where additional tests are required to explain a diagnosis already contained in the record. Id.
The regulations explain the situations that may require a consultative examination:
We may purchase a consultative examination to try to resolve an inconsistency in
the evidence, or when the evidence as a whole is insufficient to allow us to make
a determination or decision on your claim. Some examples of when we might
purchase a consultative examination to secure needed medical evidence, such as
clinical findings, laboratory tests, a diagnosis, or prognosis, include but are not
limited to:
33
(1)
The additional evidence needed is not contained in the records of your
medical sources;
(2)
The evidence that may have been available from your treating or other
medical sources cannot be obtained for reasons beyond your control, such
as death or noncooperation of a medical source;
(3)
Highly technical or specialized medical evidence that we need is not
available from your treating or other medical sources; or
(4)
There is an indication of a change in your condition that is likely to affect
your ability to work, but the current severity of your impairment is not
established.
20 C.F.R. § 404.1519a(b).
Here, the ALJ determined at step two that Ms. Sanchez’s borderline intellectual
functioning was severe. (Tr. 13.) The ALJ followed the special technique at step two to
determine whether Ms. Sanchez’s borderline intellectual functioning met or equaled the criteria
of Listing 12.02 Organic Mental Disorder,43 and to evaluate the severity of her mental
impairment and its effect on her ability to work. The ALJ determined that Ms. Sanchez had
moderate restrictions in activities of daily living, mild difficulties in maintaining social
functioning, and moderate difficulties in maintaining concentration, persistence, or pace.44 (Tr.
14-15.) The ALJ concluded that Ms. Sanchez did not satisfy the “B” criteria of the Listings.45
(Tr. 15.) The ALJ also concluded that Ms. Sanchez did not satisfy the “C” criteria of the
43
Organic Mental Disorders are described as “[p]sychological or behavioral abnormalities associated with a
dysfunction of the brain . . . as evidenced by at least one of the following: 1. Disorientation to time and place;
2. Memory impairment; 3. Perceptual or thinking disturbances; 4. Change in personality; 5. Disturbance in mood;
6. Emotional lability and impairment in impulse control; or 7. Loss of measured intellectual ability of at least 15 IQ
points from premorbid levels or overall impairment index clearly within the severely impaired range on
neuropsychological testing, e.g., the Luria-Nebraska, Halstead-Reitan, etc.” (Tr. 489.) (Emphasis added.)
44
The ALJ’s findings are consistent with Dr. Madelyn Miranda-DeCollibus’s PRT. (Tr. 498.)
45
To satisfy the “paragraph B” criteria, the mental impairment must result in at least two of the following: marked
restrictions of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration.
(Tr. 14.)
34
Listings.46 (Id.) Ms. Sanchez has not challenged the ALJ’s step two findings. Additionally, the
ALJ evaluated all the evidence in the case record, as she was required to do, and determined that
despite Dr. Wynne’s Axis II diagnosis, Dr. Wynne’s assessment of Ms. Sanchez’s ability to do
work-related mental activities was not supported by the record as a whole. (Tr. 20-22.) For this
and other reasons, the ALJ accorded Dr. Wynne’s functional assessment little weight, and the
Court has found that the ALJ’s evaluation is supported by substantial evidence. See Section
III.A.3., supra. Finally, Ms. Sanchez has not pointed to any objective evidence in the record, nor
can the Court find any, that demonstrates the current severity of her mental impairment is not
already established or that additional evidence would have a material impact on the ALJ’s
decision. Hawkins, 113 F.3d at 1167 (there must be the presence of some objective evidence in
the record suggesting the existence of a condition which could have a material impact on the
disability decision requiring further investigation). The Court finds that the ALJ had sufficient
information in the record to make her determination regarding Ms. Sanchez’s ability to do workrelated mental activities and that a second consultative examination regarding Ms. Sanchez’s
mental impairment was not warranted. See Barrett v. Astrue, 340 F. App’x 481, 487 (10th Cir.
2009) (unpublished) (finding there was no need to further develop the record because sufficient
information existed for the ALJ to make her disability determination). Because the ALJ’s RFC
assessment properly described how the evidence supported her conclusions and her findings are
supported by substantial evidence, there is no reversible error as to this issue.
46
To satisfy the “paragraph C” criteria, the mental impairment must result in one of the following: 1. Repeated
episodes of decompensation, each of extended duration; 2. A residual disease process that has resulted in such
marginal adjustment that even a minimal increase in mental demands or change in the environment would be
predicted to cause the individual to decompensate; or 3. Current history of 1 or more years’ inability to function
outside a highly supportive living arrangement with an indication of continued need for such an arrangement. (Tr.
499.)
35
C.
The ALJ’s Past Work Finding Is Supported by Substantial Evidence
Ms. Sanchez argues that the ALJ erred at step four because the ALJ’s RFC is not
supported by substantial evidence47 and because the ALJ erred in assessing the functions of
Ms. Sanchez’s past work. (Doc. 23 at 22-24.) Specifically, Ms. Sanchez contends that the ALJ
determined that Ms. Sanchez could perform her past job as a small products assembler as
actually performed, and that Ms. Sanchez testified that her job required her to stand for eight
hours thereby exceeding the ALJ’s RFC for modified light work. (Id. at 22.) Ms. Sanchez also
argues that the reasoning level for a products assembler exceeds the ALJ’s mental RFC. (Id. at
23.) The Commissioner argues that the ALJ reasonably found that, through the date of last
insured, Ms. Sanchez could do her past unskilled work and was not disabled under the Act.
(Doc. 25 at 17-20.)
Claimant bears the burden of proving she cannot return to her past relevant work.
Thomas v. Secretary of Health and Human Services, 21 F.3d 1122 (10th Cir. 1994) (unpublished)
(citing Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir. 1993)).
To prove that she cannot return to her past relevant work, claimant must show that she can
perform neither “[t]he actual functional demands and job duties of a particular past relevant job”
nor “[t]he functional demands and job duties of the occupation as generally required by
employers throughout the national economy.” Id. (citing SSR 82-61; Andrade v. Secretary of
Health and Human Servs., 985 F.2d 1045, 1050-51 (10th Cir. 1993)).
Said another way,
Ms. Sanchez’s burden is to demonstrate that she cannot return to her former type of work, and
not just to her previous job. Andrade, 985 F.2d at 1052. Additionally, the ALJ
may use the services of vocational experts or vocational specialists, or other
resources, such as the “Dictionary of Occupational Titles” and its companion
47
The Court has found that the ALJ’s RFC is supported by substantial evidence and does not address this argument
here. See Section III.B., supra.
36
volumes and supplements, published by the Department of Labor, to obtain
evidence we need to help us determine whether you can do your past relevant
work, given your residual functional capacity. A vocational expert or specialist
may offer relevant evidence within his or her expertise or knowledge concerning
the physical and mental demands of a claimant’s past relevant work, either as the
claimant actually performed it or as generally performed in the national economy.
Such evidence may be helpful in supplementing or evaluating the accuracy of the
claimant’s description of his past work. In addition, a vocational expert or
specialist may offer expert opinion testimony in response to a hypothetical
question about whether a person with the physical and mental limitations imposed
by the claimant’s medical impairment(s) can meet the demands of the claimant’s
previous work, either as the claimant actually performed it or as generally
performed in the national economy.
20 C.F.R. 404.1560(b)(2).
Here, the ALJ utilized VE Thomas Greiner to summarize Ms. Sanchez’s work history
and testimony and classify her past relevant work.
(Tr. 59.)
Mr. Greiner classified
Ms. Sanchez’s work as a small products assembler, DOT 739.687-030, light, unskilled, SVP-2.
(Tr. 60.) The ALJ then asked the VE to
consider someone of the claimant’s age, education and past work
experience with the following limitations. This person would be limited to
light exertional activity as defined in the Dictionary of Occupational Titles
and social security regulations so that lift/carry is 20 pounds occasionally,
10 pounds frequently. Push/pull to the extent that they can lift/carry. Sit
for six hours in an eight-hour workday. Stand/walk for six hours in an
eight-hour workday.
Only occasionally climb ramps and stairs.
Occasional stoop, kneel, crouch, crawl. Never climbing ladders, ropes, or
scaffolds. This person would be limited to understand, remember, and
carry out simple instructions. Would be able to maintain attention and
concentration to perform simple tasks for two hours at a time without
requiring redirection to task. This person would require work involving
no more than occasional change in the routine work setting. And no more
than occasional independent planning or goal setting. So work should be
routine, repetitive and rote. Would that person be able to perform the
claimant’s past work?
A.
Let me see. . . . Well, it would fit. It would fit your, it’s light, constant
reaching, handling, and fingering, near acuity, depth perception, the
combination. And none of the other things. Nothing else.
Q.
Okay.
37
A.
And it’s, the mental three digits are 6, 8, 7.
Q.
Right.
A.
Indicating routine, repetitive job with only superficial contact with
anybody.
Q.
Okay. Obviously, this is unskilled. So there is no, there’s no question of
transferability to skills.
A.
Correct.
(Tr. 61-62.) The ALJ properly relied on the VE’s testimony to determine that Ms. Sanchez could
perform her past relevant work. (Tr. 22-23.) See Doyal v. Barnhart, 331 F.3d 758, 761 (10th
Cir. 2003) (finding that an “ALJ may rely on information supplied by the VE at step four.”)
(quoting Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996))).
Although the ALJ stated in one part of her determination that Ms. Sanchez could return to
her job “as actually performed,” she also stated that Ms. Sanchez was capable of performing her
past relevant work “as it is performed at the light exertional level and is unskilled.” (Tr. 22.)
The ALJ discussed that the VE testified according to the DOT and described that the work was
performed at the light level, and was unskilled with an SVP of 2. (Id.) As such, the Court finds
no error in the ALJ’s statement of the legal standard for determining whether Ms. Sanchez could
return to her past relevant work as actually performed or generally performed in the national
economy. In conducting its review, the Court “should, indeed must, exercise common sense.
The more comprehensive the ALJ’s explanation, the easier [the Court’s] task; but [the Court]
cannot insist on technical perfection.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.
2012). Moreover, Ms. Sanchez has not demonstrated that she is unable to perform her past
relevant work as it is generally performed in the national economy. Ms. Sanchez has also not
demonstrated that the ALJ improperly relied on the VE’s testimony regarding the small products
38
assembler job requirements. As such, the ALJ’s step four finding that Ms. Sanchez can perform
her past relevant work is supported by substantial evidence.
Finally, Ms. Sanchez argues that the job of small products assembler has a reasoning
level of two which exceeds the ALJ’s mental RFC.
Ms. Sanchez’s argument relies on
Dr. Wynne’s functional assessment that she would be severely impaired in her ability to persist
at even simple tasks. (Doc. 23 at 23.). However, the ALJ accorded Dr. Wynne’s functional
assessment little weight, and the Court has determined the ALJ’s evaluation of Dr. Wynne’s
functional assessment is supported by substantial evidence.
See Section III.A.3., supra.
Additionally, the Tenth Circuit has found that a limitation to “simple routine work tasks” is more
consistent with jobs requiring level two reasoning. Hackett v. Barnhart, 395 F.3d 1168, 1176
(10th Cir. 2005).
For the foregoing reasons, the Court finds that the ALJ applied the correct legal standards
at step four and that her findings are supported by substantial evidence. As such, there is no
reversible error as to this issue.
IV. Conclusion
For the reasons stated above, Ms. Sanchez’s Motion to Reverse and Remand for Payment
of Benefits, or in the Alternative, for Rehearing, With Supporting Memorandum (Doc. 23) is
DENIED.
_____________________________________
KIRTAN KHALSA
United States Magistrate Judge,
Presiding by Consent
39
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