KEVIN R. SWEAZEA, Magistrate Judge.
Plaintiff Kelly Chavez seeks review of the Social Security Administration's denial of his application for disability insurance benefits. See 42 U.S.C. § 423. With the consent of the parties to conduct dispositive proceedings in this matter, see 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(b), the Court has considered Chavez's motion to reverse and remand the agency's decision, the Commissioner's response in opposition, and Chavez's reply. [See Docs. 21; 26; & 27]. Because the Administrative Law Judge ("ALJ") correctly determined that Chavez failed to establish a per se disability as of December 31, 2006 and appropriately addressed the retrospective opinions of two doctors in concluding Chavez could perform sedentary work, the Court
Chavez alleged disability as of December 31, 2006 at the age of forty-four and on the last date he last qualified for benefits ("date last insured").
This Court reviews the ALJ's decision to determine whether it is supported by substantial evidence and the ALJ applied the correct legal standards. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). If substantial evidence supports the conclusion that the plaintiff is not disabled and the ALJ followed the law, the plaintiff is not entitled to relief. See Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). The term "substantial evidence" means that which "a reasonable mind might accept as adequate to support a conclusion." Id. at 1118 (citation and internal quotation marks omitted). Even if the Court could reach the opposite conclusion, the decision must stand if the record as a whole is not "overwhelmed by other evidence" to the contrary or unless a "mere scintilla" supports it. Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
Chavez makes three arguments in support of remand: (1) the ALJ erred at step three in concluding that Chavez's hip impairment did not meet or equal Listing 1.02; (2) as an alternative to the first argument, the ALJ failed to develop the administrative record as to whether Chavez could "ambulate effectively"; and (3) the ALJ improperly rejected the opinions of two physicians in fashioning Chavez's RFC.
To qualify for benefits under Listing 1.02, Chavez was required to prove his hip impairment "me[t] [or equaled] all of the specified medical criteria" on December 31, 2006 and had done so for at least twelve continuous months. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. In determining whether a plaintiff satisfies a Listing, the ALJ may consider only medical evidence. See 20 C.F.R. § 404.1526(b). Moreover, the ALJ must "set out specific findings and . . . reasons for accepting or rejecting evidence at step 3." Clifton v. Charter, 79 F.3d 1007, 1009 (10th Cir. 1996).
Listing 1.02 mandates a finding of disability where the plaintiff proves "major dysfunction of a joint due to any cause." 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. "Major dysfunction," refers to "gross anatomical deformity . . . and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction or ankylosis of the affected joint(s)." Id. As is relevant here, the plaintiff must also demonstrate an inability to "ambulate effectively." Id. In this case, the agency does not dispute that Chavez's hip impairment meets Listing 1.02's anatomical criteria. The issue therefore is whether Chavez satisfied his burden to show he could not ambulate effectively on his date last insured.
An "[i]nability to ambulate effectively," is "an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2. Relatedly, "[i]neffective ambulation" is synonymous with "insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." Id. By contrast, effective ambulation concerns an individual's "capab[ility] of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living." Id. A person "must have the ability to travel without companion assistance to and from a place of employment or school." Id.
Chavez argues that the ALJ did not weigh the evidence and make specific findings in considering Listing 1.02. The Court is not persuaded that Chavez's contention is correct. The ALJ indicated in her decision that she gave "particular attention to . . . listing 1.02 for major dysfunction of a joint," and the Court is required to take the ALJ at her word, unless shown otherwise. See Wall v. Astrue, 561 F.3d 1048, 1070 (10th Cir. 2009) (explaining "[w]here, as here, the ALJ indicates he has considered all the evidence our practice is to take the ALJ at his word") (citation and internal alterations omitted)). The ALJ extensively discussed treatment providers' notes, x-rays, and other tests done prior to the date last insured. Those records document a workplace injury to the low back, spasms, discitis, right-leg pain, degenerative disc disease, degenerative changes in both hips, a probable degenerative femoral cyst, antalgic gait, limited right-hip flexion, and occasional use of a cane.
Significantly, the ALJ observed the "medical evidence of record demonstrates that [Chavez] was ambulatory well after December 31, 2006," including reports "during physical therapy evaluation [in June, 2008] that his condition had progressed particularly in the last year, that he went to the gym five days a week, walked on a treadmill, lifted weights with his upper body, and stretched." [AR 391]. Additionally, the ALJ explained "[t]reatment notes indicated that [Chavez] used no assistive devices to ambulate and that he walked at a normal community ambulation pace." [AR 38; 657]. The ALJ further noted Chavez "reported [in 2010] that he ha[d] been doing odd jobs for the past eight years." [AR 757].
Taken as a whole, the ALJ's decision is sufficiently supported and reasoned to permit meaningful appellate review.
Chavez contends that the ALJ's discussion of Listing 1.02 itself demonstrates he satisfied the medical criteria and the record otherwise objectively presents a question as to his ambulatory capacity. The Court takes Chavez to mean the ALJ's step-three determination was unsupported by substantial evidence.
The portions of the record Chavez points to do not persuade the Court that the ALJ's decision lacks support.
This conclusion is underscored by other uncontested evidence. After 2006, Chavez "went to the gym five days a week, walked on a treadmill, lifted weights with his upper body, and stretched." [AR 390-91; 657]. As discussed above, Chavez was able to walk without an assistive device at a normal community pace. [AR 391; 657]. Chavez later clarified at the hearing that he walked "maybe 10" minutes on the treadmill per day in preparation for surgery in 2008. [AR 441]. In sum, the ALJ's determination at step three is supported by substantial evidence. The Court, therefore, affirms the determination by the ALJ that Chavez did not establish that his impairment, or combination of impairments, met or equaled listing 1.02.
Alternatively, Chavez maintains that the ALJ had the duty to "fairly develop the record" to determine whether Chavez could ambulate effectively. The Court agrees "the ALJ bears responsibility for ensuring that an adequate record is developed during the disability hearing consistent with the issues raised." Maes v. Astrue, 522 F.3d 1093, 1096-1097 (10th Cir. 2008) (citation omitted). However, "the ALJ should ordinarily be entitled to rely on the claimant's counsel to structure. . . [the] claimant's case in a way that the claimant's claims are adequately explored," and the "ALJ is not required to act as the claimant's advocate in order to meet his duty to develop the record." Id. at 1097.
Chavez was represented at the hearing by counsel. Counsel did not assert that the record was incomplete; instead, Chavez's lawyer confirmed that aside from one exhibit, he would not be submitting any additional materials for consideration. [AR 399; 402].
In his reply brief, Chavez contends that under Section I-2-5-34(A)(2) of the Administration's Hearing, Appeals, and Litigation Manual ("HALLEX"), the ALJ should have hired a medical expert to determine whether Chavez's hip impairment met or equaled Listing 1.02.
In 2013, John Vigil, MD examined Chavez once, determined Chavez could not perform even sedentary work, and opined Chavez was "completely disabled" dating back to 2002. [AR 6-15]. Later that year, Chavez's orthopedic surgeon Christopher Hanosh, MD similarly assessed Chavez's "ability to do work-related actives." [AR 50-51]. Dr. Hanosh's evaluation did not purport to relate to Chavez's functional capacity on December 31, 2006. Dr. Hanosh subsequently wrote a letter in 2015 confirming he "reviewed the report done on Kelly Chavez by Dr. John Vigil, MD" and "concur[ed] with the findings and conclusions . . . regarding Mr. Chavez's conditions." [AR 1092].
In formulating Chavez's RFC to include sedentary work, the ALJ afforded Dr. Vigil's opinion "little weight" and did not give Dr. Hanosh "significant weight." The ALJ considered Dr. Hanosh's correspondence in tandem with Dr. Vigil's assessment and rejected them for their (1) heavy reliance "on the subjective report of symptoms and limitations,"; (2) "uncritical[] accept[ance of] . . . what the claimant reported"; (3) omission of citation to "medical evidence supporting [the] opinion that [Chavez] was unable to perform even sedentary work eleven years earlier"; (4) failure to "explain the selection of 2002" as the date Chavez became disabled; and (5) lack of support in the medical records. [AR 389; 391]. The ALJ discounted Dr. Hanosh's 2013 evaluation "due to the passage of time between [Chavez's] date last insured and Dr. Hanosh's treatment of [Chavez]". [AR 391]. Chavez assigns error to the ALJ's reasoning in rejecting both doctors' opinions.
Chavez argues that the ALJ violated the "treating-physician rule" by failing to give Dr. Hanosh's opinion controlling weight and rejecting the doctor's opinion without articulating specific, legitimate reasons. Under the rule, the ALJ is required to give controlling weight to a treating physician's opinion if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence in the record." Allman v. Colvin, 813 F.3d 1326, 1331 (10th Cir. 2016) (internal quotation marks omitted). If "the treating physician's opinion is not entitled to controlling weight, the ALJ must then consider whether the opinion should be rejected altogether or assigned some lesser weight." Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007).
As with all medical opinions, the ALJ must discuss the weight she assigns and give good reasons for that weight. See id. The "good reasons" are statutory and include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of that relationship; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citation omitted). Not all considerations are applicable in every case, and the ALJ need not explicitly discuss each factor. See id.
The Court is not persuaded that Dr. Hanosh's opinions should be accorded controlling weight. Dr. Hanosh did not actually treat Chavez until long after the date of last insured, a point the ALJ makes in her decision. See 20 CFR § 404.1527(c)(2) (explaining that treating sources are entitled to more weight "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations"). Chavez does not cite any legal authority requiring the ALJ to apply the treating-physician doctrine where the doctor first treated the claimant long after the date last insured. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.") By adopting Dr. Vigil's finding, however, Dr. Hanosh arguably provided a "retrospective diagnosis" several years after the date last insured, and it is undisputed that Dr. Hanosh became a treating physician by operating on Chavez in 2008.
Although the Tenth Circuit has confirmed "a treating physician may provide a retrospective diagnosis of a claimant's condition," "[t]he relevant analysis" is not about controlling weight, but whether the plaintiff "was actually disabled prior to the expiration of her insured status." Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990). The Court of Appeals has cautioned courts that "[a] retrospective diagnosis without evidence of actual disability is insufficient," which is "especially true where the disease is progressive." Id. Here, Chavez has not established actual disability as of December 31, 2006— the inability "to engage in any substantial gainful activity by reason of any medically determinable physical . . . impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). As the ALJ observed, the "medical evidence of record demonstrates that [Chavez] was ambulatory well after December 31, 2006." [AR 389].
Even assuming the ALJ was required perform the traditional analysis concerning Dr. Hanosh's correspondence adopting Dr. Vigil's limitations, the ALJ articulated specific reasons for rejecting the retrospective diagnoses tied to the applicable regulatory factors.
If Chavez's disagreement is with the ALJ's consideration of Dr. Hanosh's 2013 "medical assessment of limitations to do work-related actives," this opinion was not retrospective. The Court does not read Tenth Circuit case law as requiring any reasoning beyond the ALJ's recognition that normally Dr. Hanosh would be entitled to controlling weight had the treating physician relationship—and the doctor's subsequent opinion—not come years after the last-insured date. See Adams v. Chater, 93 F.3d 712, 714 (10th Cir. 1996) (rejecting opinion that did not provide a retrospective diagnosis of disability); Candelario v. Barnhart, 166 Fed. App'x. 379, 385 (10th Cir. 2006) (rejecting the plaintiff contention that "[the treating physician's] opinion that he was incapable of even part-time work conflicts with the ALJ's ultimate conclusion" because the doctor "examined him in March 2002, significantly after the date he was last insured [in 1998]" and "that opinion is irrelevant"). In sum, the ALJ properly considered and gave little weight to Dr. Hanosh's opinions.
Because the ALJ considered Dr. Vigil's opinion in tandem with Dr. Hanosh's correspondence, the Court does not repeat its analysis and conclusion that the ALJ adequately weighed and rejected Dr. Vigil's retrospective diagnoses. Nevertheless, Chavez lodges additional objections specific to the ALJ's consideration of Dr. Vigil: (1) the ALJ failed to cite medical evidence contrary to Dr. Vigil's opinion; (2) the ALJ improperly required Dr. Vigil to cite evidence; and (3) the ALJ substituted her own lay judgment for that of a trained physician.
In terms of his first challenge, Chavez does not correctly refer to the applicable legal standard. "[T]he standard of review . . . is not whether the ALJ cited to substantial evidence to support her finding" but whether the decision is supported by such evidence. Camacho v. Berryhill, 2017 U.S. Dist. LEXIS 178159, *10-11 (D.N.M. Oct. 27, 2017). Regardless, the ALJ discussed and cited the medical records, which described Chavez's gym attendance, walking on the treadmill, walking at a normal community pace, and doing odd jobs. These "citations" contradict Dr. Vigil's RFC. Even if the Court could read this information differently, the Court may not reweigh the evidence and remand on that basis. See Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006).
As to Chavez's second claim, the Court agrees there is no formal requirement to cite evidence in formulating a diagnosis. The ALJ, however, is tasked with weighing medical opinions, which properly includes consideration of support in and consistency with the record as a whole. See Keyes-Zachary, 695 F.3d at 116. Thus, identifying the bases on which a doctor relies—the purpose of citation—allows the ALJ to more fully consider and assess the opinion. As the regulations provide, "[t]he better an explanation a source provides for an opinion, the more weight [the agency] will give to that opinion." 20 C.F.R § 404.1527(c)(3). Although Dr. Vigil lists the records he reviewed, Dr. Vigil does not explain how the records show Chavez could not perform even sedentary work as far back as 2002.
Finally, Chavez complains that the ALJ impermissibly "reject[ed] Dr. Vigil's opinion by speculating as to the extent of his medical judgments and observations." Aside from disagreeing with ALJ's determination, Chavez does not explain how the ALJ substituted her own judgement for Dr. Vigil's, what impermissible inferences she drew, or how the ALJ's decision to afford Dr. Vigil little weight was based solely on the ALJ's credibility judgments or lay opinion. To the extent Chavez suggests the ALJ improperly criticized Dr. Vigil for relying on Chavez's subjective reports of symptomology, it was not the sole reason for the ALJ's weight determination or necessarily an improper consideration. See Flint, 951 F.2d at 267 (explaining that although "subjective testimony can be used to diagnose a physical or mental condition, this type of evidence alone cannot justify an award of benefits"). In sum, the ALJ properly rejected Dr. Vigil's assessment, and the Court rejects Chavez's contrary arguments.
For the reasons stated above, Chavez has not come forward with law or facts to demonstrate the ALJ's decision was erroneous or that Chavez is entitled to relief.