STEVEN C. YARBROUGH, Magistrate Judge.
Plaintiff Norma J. Lopez (Ms. Lopez) alleges that she became disabled on August 23, 2012, at the age of fifty-seven, because of arthritis in both hips and knees, knee surgeries, and diabetes. Tr. 69, 185. Ms. Lopez completed her GED in 1990, and worked as a scale, equipment and control house operator, and as a microchip inspector. Tr. 187, 200-11. Ms. Lopez's date of last insured was December 31, 2016. Tr. 13.
Ms. Lopez 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., on October 22, 2012. Tr. 141-42, 182. Ms. Lopez's application was denied at the initial level. Tr. 68, 69-78, 79-81.
A claimant is considered disabled for purposes of Social Security disability insurance benefits or supplemental security income if that individual 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); see also 42 U.S.C. § 1382c(a)(3)(A). The Social Security Commissioner has adopted a five-step sequential analysis to determine whether a person satisfies these statutory criteria. See 20 C.F.R. §§ 404.1520, 416.920. The steps of the analysis are as follows:
See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
A court must affirm the 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); Casias v. Sec'y of Health & Human Serv., 933 F.2d 799, 800-01 (10th Cir. 1991). In making these determinations, the reviewing 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). For example, a court's disagreement with a decision is immaterial to the substantial evidence analysis. A decision is supported by substantial evidence as long as it is supported by "relevant evidence . . . a reasonable mind might accept as adequate to support [the] conclusion." Casias, 933 F.3d at 800. While this requires more than a mere scintilla of evidence, Casias, 933 F.3d at 800, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent [the] findings from being supported by substantial evidence." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
Similarly, even if a court agrees with a decision to deny benefits, if the ALJ's reasons for the decision are improper or are not articulated with sufficient particularity to allow for judicial review, the court cannot affirm the decision as legally correct. Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As a baseline, the ALJ must support his or her findings with specific weighing of the evidence and "the record must demonstrate that the ALJ considered all of the evidence." Id. at 1009-10. This does not mean that an ALJ must discuss every piece of evidence in the record. But, it does require that the ALJ identify the evidence supporting the decision and discuss any probative and contradictory evidence that the ALJ is rejecting. Id. at 1010.
The ALJ made her decision that Ms. Lopez was not disabled at step four of the sequential evaluation. Tr. 20-21. The ALJ determined that Ms. Lopez met the insured status requirements of the Social Security Act through December 31, 2016, and that she had not engaged in substantial gainful activity since August 23, 2012, the alleged onset date. Tr. 13. She found that Ms. Lopez had severe impairments of degenerative joint disease, degenerative disc disease, status-post reconstructive surgery of a weight bearing joint, and obesity. Id. The ALJ determined, however, that Ms. Lopez's impairments did not meet or equal in severity one of the listings described in the governing regulations, 20 CFR Part 404, Subpart P, Appendix 1. Tr. 13-14. Accordingly, the ALJ proceeded to step four and found that Ms. Lopez had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), except
Tr. 14-15. The ALJ concluded at step four that Ms. Lopez was able to perform her past relevant work as an inspector semiconductor wafer and that she was, therefore, not disabled. Tr. 20-21.
Plaintiff argues that (1) the ALJ's RFC is not supported by substantial evidence because the record demonstrates she was only capable of, at most, sedentary work during the relevant period of time; (2) the ALJ erred by failing to consider a closed period of disability; and (3) the ALJ's hypothetical to the VE was erroneous because it included the ability to stand and walk for four hours out of an eight-hour workday when light work requires the ability to stand or walk for a total of six to eight hours in an eight-hour workday. Doc. 20 at 4-11. For the reasons discussed below, the Court finds no reversible error.
Joseph K. Ford, M.D. treated Ms. Lopez in September 2009 and from December 5, 2011, through August 23, 2012, for issues related to her left knee. Tr. 254-56, 257-64. On September 2, 2009, Dr. Ford performed a repair of the quadriceps mechanism of Ms. Lopez's left knee based on Ms. Lopez's history of patellectomy and quadricep insufficiency with pain. Tr. 254-55. Post-operative care included pain management and the use of a walker. Tr. 256.
On December 5, 2011, Ms. Lopez returned to Dr. Ford with complaints of pain in the quadriceps musculature. Tr. 264. On physical exam, she was able to extend her left knee fully to 180 degrees and flex to 120 degrees. Id. Radiographic studies of both knees indicated no sign of arthritis. Id. Dr. Ford prescribed a nonsteroidal anti-inflammatory (Mobic) and narcotic pain medication (Tramadol). Id. On February 21, 2012, based on subsequent MRI studies, Dr. Ford assessed that Ms. Lopez was developing degenerative changes in the articular cartilage and joint related to her left knee injury. Tr. 262. He determined that she was a candidate for SUPARTZ injections and administered five injections over the course of five weeks. Tr. 258-61. On August 23, 2012, Ms. Lopez complained of some left knee pain. Tr. 257. Dr. Ford noted that her left knee was doing satisfactorily, but that radiographic studies had revealed she was developing some chondrocalcinosis and would require continued conservative management with medication. Id.
On October 18, 2012, Ms. Lopez presented to Michael Sisk, M.D., with complaints of left hip pain that radiated down toward her knee and into her back. Tr. 288. Dr. Sisk noted on physical exam that Ms. Lopez "[c]learly has restrictions of motion in that left hip." Id. Radiographic studies demonstrated arthritis of the left hip. Id. Dr. Sisk administered a steroid injection. Id. On October 24, 2012, Ms. Lopez returned for a second injection. Tr. 287. On November 7, 2012, Ms. Lopez reported that although she had considerable relief right after the injection, her pain had returned quickly. Tr. 286. Dr. Sisk discussed Ms. Lopez's options, and noted that she wished to proceed with arthroplasty. Id.
On January 9, 2013, Ms. Lopez underwent a total left hip arthroplasty. Tr. 266-82. On January 16, 2013, Dr. Sisk noted that Ms. Lopez was "doing great" postoperatively. Tr. 285. On February 20, 2013, Dr. Sisk released Ms. Lopez to unrestricted activity. Tr. 284.
On March 25, 2013, Ms. Lopez returned to Dr. Sisk with complaints of left knee, left leg and lower back pain. Tr. 283. Following a physical exam, Dr. Sisk assessed degenerative disc disease of the lumbar spine with left leg radiculopathy. Id. He planned to obtain an MRI of Ms. Lopez's lumbar spine. Id. On March 17, 2013, Dr. Sisk noted that Ms. Lopez had foraminal and canal stenosis. Tr. 358. Dr. Sisk discussed physical therapy and the possibility of an injection with Ms. Lopez. Id. Ms. Lopez reported that she was leaving to "go back south," and would not be back until June. Id.
On June 19, 2013, Ms. Lopez presented to Dr. Sisk requesting an impairment rating for her workers compensation carrier regarding her left knee. Tr. 313. Dr. Sisk noted that he agreed she had a permanent impairment from her left knee situation, but that he did not perform impairment ratings. Id. He added that "[t]here is no question that she has lost power within the leg because of the patellectomy and probably does have some level of chronic pain within the knee[.]" Id. Dr. Sisk agreed to refer her to an appropriate physician to get an impairment rating. Id.
Ms. Lopez last saw Dr. Sisk on July 3, 2013, and complained of continued pain in her left leg. Tr. 356. Dr. Sisk noted he did not see any evidence of pain originating from her left hip joint, and thought the pain could be of spinal origin. Id. Dr. Sisk referred Ms. Lopez to Dr. Siegel. Id.
On July 23, 2013, Ms. Lopez saw Henry Fabian, M.D., with complaints of left lower extremity radiculopathy getting progressively worse. Tr. 355. On physical exam Dr. Fabian noted adequate strength to the left lower extremity and no pain of the hip. Id. Dr. Fabian noted spinal stenosis at L5-S1 and L2-3. Id. Ms. Lopez indicated she was getting relief with sitting posture. Id. Dr. Fabian recommended an outpatient procedure to open up the L5-S1 exit zone. Id. Ms. Lopez took the recommendation under advisement. Id. Dr. Fabian prescribed hydrocodone for pain. Id.
On October 31, 2013, Ms. Lopez established care with Taddy Healthcare Services, LLC, in Carlsbad, New Mexico, and reported back pain. Tr. 364. DO Nii Tetteh Addy referred Ms. Lopez for an MRI and based on those findings, on November 20, 2013, assessed chronic lumbar back pain with radiculopathy. Tr. 363.
On January 29, 2014, Ms. Lopez presented to Omar Osmani, M.D., of Spine and Orthopedic Center of New Mexico, in Roswell, New Mexico, complaining of low back pain. Tr. 375-79. Following a physical exam and review of radiographic studies, Dr. Osmani assessed that Ms. Lopez was suffering from a disc herniation at the L5-S1 level with back pain and left radiculopathy/radiculitis associated with mild to moderate pain. Tr. 378. He planned to start Ms. Lopez on physical therapy of the lumbar spine, deep heat, ultrasound, massage, abdominal strengthening exercises, electrical stimulation and nonsteroidal anti-inflammatory drugs. Id. He instructed Ms. Lopez to return in one month. Id.
On June 19, 2014, Ms. Lopez saw Cydney Roller, CNP, and complained of pain in her lower back with left-sided radiculopathy. Tr. 372-74. CNP Roller noted that Ms. Lopez had completed a full course of physical therapy and was using nonsteroidal anti-inflammatory drugs, but continued to be symptomatic. Tr. 374. CNP Roller considered a lumbar spine MRI, and suggested that Ms. Lopez might be a candidate for pain management. Id.
On August 1, 2014, Ms. Lopez saw Dr. Osmani and complained of low back and right groin pain. Tr. 367-71. Following a physical exam and review of radiographic studies, Dr. Osmani assessed osteoarthritis right hip and spine stenosis. Tr. 370. Dr. Osmani considered Ms. Lopez a "level two which means that she needs some interventional pain management on top of self instituted exercises and anti-inflammatory medications. If this fail[s], then the patient would be a candidate for surgical intervention with decompression and possible stabilization." Id. Dr. Osmani referred Ms. Lopez for pain management and instructed her to continue self instituted exercises. Id.
On February 5, 2015, Ms. Lopez saw Dr. Osmani and reported that her low back still hurt. Tr. 440-44. Dr. Osmani performed a physical exam and reviewed radiographic images. Tr. 442-43. Dr. Osmani assessed that "the patient has degenerative disc disease and mild spinal stenosis at L4-L5 and L5-S1[.]. . . She still has pain in her back but [I] explained to her that she doesn't have any significant finding that warrants surgical intervention at this point in time." Tr. 443. Dr. Osmani instructed Ms. Lopez to continue with pain management and follow up when necessary. Id.
On February 23, 2015, Ms. Lopez presented to William Baggs, M.D., and complained of bilateral knee pain, left greater than right. Tr. 437-38. On physical exam, Dr. Baggs noted, as to the left knee, that it "[a]ctually does show a pretty good left knee. Range of motion is from 0 to 125 and no effusion. There is a Grade 3 quadriceps strength. There is an absent patella. Tenderness is primarily over the medial joint line." Tr. 437. As to the right knee, Dr. Baggs noted it showed primarily lateral joint line tenderness. Id. Dr. Baggs recommended conservative care with Euflexxa injections. Tr. 438. He indicated that Ms. Lopez was probably getting closer to knee replacement. Id.
On May 18, 2013, State agency examining medical consultant Michelle L. Smith, M.D., examined Ms. Lopez. Tr. 307-12. Ms. Lopez's chief complaints were arthritis in both hips and knees, knee surgeries, left hip replacement, and diabetes mellitus. Tr. 307. Ms. Lopez reported that she had a left knee patellectomy in 2000, and that her left knee pain had gotten worse over time and that her knee swells. Id. She reported she could walk and had physical therapy in the past. Id. She stated she could not do a lot secondary to pain. Id. She also reported that she had been to multiple doctors who had told her there was nothing else they could do for her knee pain. Id.
Dr. Smith noted she reviewed (1) a February 14, 2012, radiology report related to Ms. Lopez's status post patellectomy; (2) Dr. Sisk's October 18, 2012, outpatient note related to Ms. Lopez's left hip arthritis; (3) the Administration's December 20, 2012, Disability Report; (4) the January 11, 2013, discharge summary related to Ms. Lopez's total left hip arthroplasty; (5) Dr. Sisk's March 25, 2013, outpatient note related to Ms. Lopez's degenerative disc disease with left leg radiculopathy; and (6) an April 3, 2013, radiology report of Ms. Lopez's lumbar spine. Tr. 307-08. Dr. Smith also indicated under a section titled "Ancillary," that she reviewed radiographic studies that included "Left Knee, 2 views," and "Left Hip, 2 views." Tr. 311-12.
Dr. Smith took Ms. Lopez's histories; i.e., past medical history, past surgical history, social history, and pertinent family history. Tr. 308-09. On physical exam, Dr. Smith noted, inter alia, that Ms. Lopez had (1) no discernable discomfort with normal range of cervical and dorsolumbar motion; (2) no discernable hip discomfort during supine examination; (3) negative seated bilateral straight leg test; (4) negative supine bilateral straight leg test; (5) negative bilateral FABERE test; (6) negative bilateral Gaenslen's Sign; (7) negative Milgram's; and (8) flexion 0-135 degrees and extension 135-0 degree of the knee joints. Tr. 310. Dr. Smith noted normal range of motion of bilateral knees, although there was some slight swelling in the left knee. Tr. 311. Dr. Smith noted on spinal exam that "[t]here was no cervical, thoracic, lumbar, or sacral spinous process tenderness to palpation or in accompanying paraspinal areas. No sacroiliac joint, ischial tubercle, or iliac wing tenderness with palpation." Id.
Dr. Smith diagnosed obesity, left knee osteoarthritis, and status post left hip replacement. Tr. 312. Dr. Smith assessed that
Id.
On May 30, 2013, nonexamining State agency medical consultant George Hearne, SDM, reviewed Ms. Lopez's medical record evidence
Ms. Lopez first argues that from her alleged onset date to the date of the Administrative Hearing that she was capable of, at most, only sedentary exertional capacity. Doc. 20 at 4-7. In support, Ms. Lopez cites to certain treatment notes in which she complained about and was treated for left knee and/or left hip pain. Id. For example, Ms. Lopez cited Dr. Ford's February 21, 2012, treatment note in which he assessed degenerative changes in the articular cartilage and joint related to her left knee and determined she was a candidate for SUPARTZ injections.
The Commissioner contends that the ALJ thoroughly reviewed Ms. Lopez's treatment history, including her knee surgery, her total left hip replacement, and her complaints of lower back pain. Doc. 21 at 8. The Commissioner further contends that the ALJ did not fully rely on Dr. Smith's functional assessment, but properly tempered it based on objective medical findings that indicated Ms. Lopez was slightly more limited than Dr. Smith assessed. Id. at 9. Finally, the Commissioner contends that there is no other medical source opinion evidence in the record indicating that Ms. Lopez was more limited than the ALJ assessed, and that her arguments to the contrary amount to a request that the Court re-weigh the evidence, which it cannot do. Id.
In assessing a claimant's RFC at step four, the ALJ must consider the combined effect of all of the claimant's medically determinable impairments, and review all of the evidence in the record. Wells v. Colvin, 727 F.3d 1061, 1065 (10
The ALJ's RFC is supported by substantial evidence. Here, the ALJ considered all of Ms. Lopez's medically determinable impairments and reviewed all of the evidence in the record as she was required to do. Tr. 15-19. For example, the ALJ discussed Ms. Lopez's left knee surgery and total left hip arthroplasty. Tr. 16. She discussed Ms. Lopez's post-operative care, including physical exams, radiographic studies, and conservative pain management. Tr. 16-17. The ALJ discussed Ms. Lopez's complaints of lumbar back pain and the treatment notes related thereto. Tr. 17. The ALJ also discussed Ms. Lopez's hearing testimony and the functional limitations she reported based on her physical impairments.
Moreover, in citing to certain treatment notes that Ms. Lopez argues could support a sedentary exertional level, Ms. Lopez essentially asks this Court to reweigh the evidence, which it cannot do. See Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10
For the foregoing reasons, there is no reversible error as to this issue.
Ms. Lopez next argues that the ALJ failed to consider that Ms. Lopez should have been entitled to at least a closed period of disability from January 24, 2012,
The Commissioner contends that Ms. Lopez has failed to cite any evidence to support a finding that she was more limited than the ALJ assessed during any of the relevant time period. (Doc. 21 at 10.)
In a closed period case, the ALJ determines that a claimant was disabled for a specific period of time which both started and stopped prior to the date of the ALJ's decision. Udero v. Apfel, 156 F.3d 1245 (10
As an initial matter, the Court notes that Ms. Lopez's counsel did not ask the ALJ to consider a closed period of disability. Additionally, Ms. Lopez contradicts herself by on the one hand arguing her condition is worsening; i.e., she is headed for a total knee replacement, Doc. 20 at 10, while on the other hand arguing, without identifying specific medical evidence, that as of March 18, 2015, her condition had improved such that she could perform substantial gainful activity.
That aside, the Court has already found that the ALJ's determination that Ms. Lopez had the ability to do a modified range of light range throughout the relevant period of time is supported by substantial evidence. See Section III.C.1, supra. Moreover, the ALJ discussed the medical evidence related to Ms. Lopez's post-operative status related to both her left knee and left hip during the relevant time period. Tr. 16. The ALJ concluded, based on the medical record evidence, that Ms. Lopez required only conservative care for her ongoing left knee pain and that she had done "great" following her hip replacement and was taken off restrictions six weeks after surgery. Tr. 16. The ALJ further noted that follow up notes two months after hip surgery indicated that Ms. Lopez's hip replacement was "doing quite well." Id. The record supports these findings. Finally, the ALJ thoroughly discussed subsequent treatment notes which consistently recommended conservative care. Tr. 16-19. Because the Court finds that the ALJ's decision is supported by substantial evidence, and because Ms. Lopez's argument goes to the weight of the evidence and not its sufficiency, the Court will not displace the ALJ's decision. Oldham, 509 F.3d at 1257-58.
For the foregoing reasons, there is no reversible error as to this issue.
Finally, Ms. Lopez argues that the ALJ's decision should be reversed because in her hypothetical question to the VE, she asked the VE to "assume an individual of advanced age and she is limited to the following: . . . stand or walk four out of eight [hours]." Doc. 20 at 10. In support, Ms. Lopez concludes, without more, that the hypothetical is clearly erroneous because light work requires an individual to have the ability to stand or walk a total of 6 to 8 hours in an 8-hour day. Id. at 11. The Commissioner contends that it is unclear how the ALJ's hypothetical to the VE is error because it is consistent with the ALJ's RFC. Doc. 21 at 10. The Commissioner further contends that Ms. Lopez's argument should be rejected because it is not sufficiently developed. Id. at 10-11.
Hypothetical questions should be crafted carefully to reflect a claimant's impairments, as "[t]estimony elicited by hypothetical questions that do not relate with precision all of a claimant's impairments cannot constitute substantial evidence to support the [Commissioner's] decision. Hargis v. Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted). Here, the ALJ did not restrict Ms. Lopez to a full range of light work.
For the foregoing reasons, the Court finds no reversible error as to this issue.
For the reasons stated above, Ms. Lopez's Motion to Reverse and Remand Administrative Agency Decision, With Supporting Memorandum, is
Id. Ms. Lopez has not raised an objection to the ALJ's evaluation and weighing of Dr. Smith's opinion.
