STEVEN C. YARBROUGH, Magistrate Judge.
Plaintiff Edwina Tenorio (Ms. Tenorio) alleges that she became disabled on November 2, 2012, at the age of forty-five because of a math disability, speech impediment, hypothyroidism, heart palpitations, anxiety, hand-eye coordination problems, mental disability, and depression. (Tr. 223, 226.) Ms. Tenorio completed three years of college in 2000, and worked as a thrift store processor and big box retail sales associate. (Tr. 227, 228.) Ms. Tenorio's date of last insured was December 31, 2017. (Tr. 223.)
On April 11, 2013, Ms. Tenorio protectively filed applications for Social Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 401 et seq., and for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381 et seq. (Tr. 201-04, 205-11.) Ms. Tenorio's applications were denied at the initial level (Tr. 82-92, 93, 94, 95-105, 138-142), and at reconsideration (Tr. 106-118, 119, 120, 121-133, 143-47). Upon Plaintiff's request, Administrative Law Judge (ALJ) Frederick Upshall, Jr., held a hearing on July 27, 2015. (Tr. 53-81, 149.) Ms. Tenorio appeared at the hearing with attorney representative Ione E. Gutierrez.
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:
See 20 C.F.R. § 404.1520(a)(4) (disability insurance 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 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 (10
The Court reviews the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. 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). A decision is based on substantial evidence where it is supported by "relevant evidence [that] 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 if it "constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). 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 disabled" must be "articulated with sufficient particularity." Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Further, the 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). In undertaking its review, the Court may not "reweigh the evidence" or substitute its judgment for that of the agency. Langley, 373 F.3d at 1118.
The ALJ made his decision that Ms. Tenorio was not disabled at step five of the sequential evaluation.
(Tr. 41.) The ALJ concluded at step four that Ms. Tenorio may be able to perform her past relevant work as a garment sorter, but given uncertainties proceeded to step five. (Tr. 45.) At step five, the ALJ determined that based on her age, education, work experience, RFC, and the testimony of the VE, that there were jobs existing in significant numbers in the national economy that Ms. Tenorio could perform. (Tr. 45-47.)
In support of her Motion, Ms. Tenorio first argues that the ALJ's RFC determination is contrary to the substantial evidence in the record and contrary to the governing law because (1) the Appeals Council failed to consider medical records that were dated after the ALJ's September 1, 2015, decision and improperly considered them out of time; (2) the ALJ's findings were inconsistent with NP Christine Lujan-Pino's medical source statements, and the ALJ failed to provide legitimate reasons for discounting NP Lujan-Pino's December 4, 2012, medical source statement; (3) the ALJ, having accorded great weight to the nonexamining State agency psychological consultant opinions, failed to account for all of the limitations they assessed; and (4) the ALJ relied on improper factors in evaluating statements regarding the intensity, persistence, and limiting effects of Ms. Tenorio's alleged disability. (Doc. 22 at 13-21.) Ms. Tenorio next argues that the ALJ's past work finding at step four contained legal error because (1) the RFC is not supported by substantial evidence; (2) the ALJ failed to make specific findings about Ms. Tenorio's past work as a garment sorter; and (3) the ALJ's "tentative finding" at step four renders it unsupported by substantial evidence. (Id. at 22-23.) Lastly, Ms. Tenorio argues that the ALJ's step-five finding was in error because (1) the ALJ's RFC is not supported by substantial evidence; and (2) the ALJ's RFC is inconsistent with jobs identified because they require a reasoning level of two which is inconsistent with Ms. Tenorio's moderate limitation in her ability to understand and remember detailed instructions. (Id. at 23-24.)
The Commissioner argues that the ALJ's RFC determination is supported by substantial evidence because (1) the Appeals Council noted that the materials submitted after the ALJ's determination were made a part of the record and properly concluded that the information did not provide a basis for changing the decision; (2) the ALJ reasonably discounted NP Lujan-Pino's December 2012 medical source statement for reasons that are supported by substantial evidence; (3) the Appeals Council properly concluded that NP Lujan-Pino's November 2015 medical source statement did not change the ALJ's decision because it was about a later time; (4) the ALJ properly relied on the nonexamining State agency psychological consultant's narrative conclusions in assessing Ms. Tenorio's mental RFC; and (5) the ALJ cited to regulatory criteria that was supported by record evidence to determine that Ms. Tenorio's statements about her alleged disabilities were inconsistent. (Doc. 24 at 5-18.) The Commissioner also contends that the ALJ's step four findings are supported by substantial evidence because the ALJ classified Ms. Tenorio's past work using both vocational expert testimony and the DOT. (Id. at 18-19.) The Commissioner asserts, however, that any error at step four is harmless because the ALJ made findings at step five that are supported by substantial evidence. (Id.) Finally, the Commissioner contends that the ALJ did not err in his step five findings because (1) the RFC is supported by substantial evidence; and (2) unskilled work does not require the ability to understand, remember or carry out detailed instructions, and Tenth Circuit case law supports that a limitation to simple work is not inconsistent with reasoning level two jobs. (Id. at 19-21.)
As fully discussed below, the Court finds that there is no reversible error.
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 Court will address each of Ms. Tenorio's arguments in turn.
After the ALJ's September 1, 2015, determination, Ms. Tenorio submitted additional evidence to the Appeals Council for its review and consideration, which the Appeals Council made part of the record.
(Tr. 2.) Ms. Tenorio argues that the Appeals Council committed legal error when it determined, without more, that the November 2015 medical evidence, specifically the November 10, 2015, medical source statements completed by CNP Christine Lujan-Pino, was not related to the relevant period of time. (Doc. 22 at 13-14.) She contends that medical source statements qualify as new, material and temporally relevant because they relate to Ms. Tenorio's history of osteoarthritis and her worsening mental impairments. (Id. at 14, Doc. 25 at 1-5.) The Commissioner asserts that the Appeals Council properly noted it considered the new evidence and was not required to provide an analysis to explain its reasons for declining review.
The Appeals Council will grant review of a case if, inter alia, "the claimant submits additional evidence that is new, material, and related to the period on or before the date of the ALJ decision." 20 C.F.R. §§ 404.970(b) and 416.1470(b) see also Chambers v. Barnhart, 389 F.3d 1139, 1142 (10th Cir. 2004) (holding that under 20 C.F.R. §§ 404.970(b) and 416.1470(b) the Appeals Council must consider evidence submitted with a request for review if it is new, material, and related to the period on or before the date of the ALJ's decision).
This means the evidence is:
Commissioner's Hearings, Appeals and Litigation Manual ("HALLEX") I-3-3-6(B); see also Threet v. Barnhart, 353 F.3d 1185, 1191 (10
Chambers, 389 F.3d at 1142 (quoting O'Dell v. Shalala, 44 F.3d 855, 859 (10
Thus, whether the November 2015 medical source statements are new, material, and chronologically pertinent is a question of law subject to de novo review. Threet, 353 F.3d at 1191. Although the Appeals Council determined that the newly submitted evidence was not related to the relevant time period, the Court addresses all three criteria as part of its de novo review.
The November 2015 medical source statements are new evidence. "Evidence is new within the meaning of 404.970(b) [and 416.1470(b)] if it is not duplicative or cumulative." Threet, 353 F.3d at 1191 (citations omitted). The November 2015 medical source statements were not available to the ALJ at the time he made his decision, and they are neither duplicative nor cumulative. Thus, the evidence is considered new.
The November 2015 medical source statements are material only in part. Evidence is material to the determination of disability "if there is a reasonable possibility that [it] would have changed the outcome." Threet, 353 F.3d at 1191 (citations omitted). On November 10, 2015, CNP Lujan-Pino assessed functional limitations regarding Ms. Tenorio's ability to do work-related physical activities based on Ms. Tenorio's recent autoimmune disease and osteoarthritis diagnoses. (Tr. 847-49.) These new diagnoses, however, do not form part of the basis for Ms. Tenorio's allegations that she was disabled during the relevant time period.
In contrast, Ms. Tenorio's application does assert limitations based on work-related mental activities and the ALJ found her severely impaired in this area. Thus, CNP Lujan-Pino's assessment that Ms. Tenorio has limited ability to do work-related mental activities as a result of anxiety disorder does relate to an impairment Ms. Tenorio asserted in her application. (Tr. 37, 849-52.) Because CNP Lujan-Pino assessed certain marked limitations that, if supported by substantial evidence, reasonably could have changed the outcome of the ALJ's determination, this evidence is material.
Even though material, however, these November 2015 medical source statements are not chronologically pertinent because they do not relate to the time period the ALJ adjudicated, i.e., the period on or before the date of the ALJ's decision. Chambers, 389 F.3d at 1142. Here, the ALJ issued his decision on September 1, 2015. (Tr. 32-47.) CNP Lujan-Pino's November 2015 statements, then, clearly come after the period the ALJ adjudicated. Further, CNP Lujan-Pino's November 2015 makes no reference to Ms. Tenorio's status during the time period the ALJ adjudicated. To the contrary, in a letter addressed to the Social Security Administration that accompanied the November 10, 2015, medical source statements, CNP Lujan-Pino discussed Ms. Tenorio's recent diagnoses and provided recent documentation in support of Ms. Tenorio's different medical conditions. (Tr. 843.) She also explicitly stated that
(Tr. 843.) (Emphasis added.) This language demonstrates that the limitations assessed in CNP Lujan-Pino's November 2015 statements do not relate back to the period of time currently under consideration, but instead address Ms. Tenorio's medical status as of November 10, 2015.
For the foregoing reasons, the Court finds the Appeals Council properly determined that the November 2015 medical evidence was about a later date. As such, there is no reversible error as to this issue.
Ms. Tenorio argues that the ALJ's RFC is inconsistent with CNP Lujan-Pino's December 2012 and November 2015 assessments, and that the ALJ failed to provide legitimate reasons for discounting the December 2012 assessment. (Doc. 22 at 14-18.) As discussed above, CNP Lujan-Pino's November 2015 assessments were not before the ALJ and the Appeals Council did not err in determining that these assessments did not relate to the period the ALJ adjudicated. See Section III.A.1, supra. The only part of Ms. Tenorio's argument remaining, therefore, is whether the ALJ provided legitimate reasons for the weight he accorded CNP Lujan-Pino's December 2012 assessment.
On December 4, 2012, CNP Lujan-Pino completed a Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment on Ms. Tenorio's behalf. (Tr. 380-84). In the medical source statement, CNP Lujan-Pino assessed both mild and moderate mental limitations based on Ms. Tenorio's panic disorder and hypothyroidism.
Ms. Tenorio argues that CNP Lujan-Pino's use of a "checklist-style form" is not a proper basis for discounting the assessment. (Doc. 22 at 16-17.) She further argues that any lack of explanation in the December 2012 assessment was cured by CNP Lujan-Pino's explanations in the November 2015 assessments. (Id. at 17.) Finally, Ms. Tenorio argues that to the extent the ALJ discounted CNP Lujan-Pino's opinion because of her "other source" status, it was improper to do so because CNP Lujan-Pino did not provide a medical diagnosis but assessed Ms. Tenorio's functional limitations. (Id. at 17-18.) The Commissioner contends that the ALJ reasonably discounted CNP Lujan-Pino's opinion regarding the nature and severity of Ms. Tenorio's mental impairments. (Doc. 24 at 7-8.)
The regulations contemplate the use of information from "other sources," both medical
As an initial matter, the ALJ's speculation that CNP Lujan-Pino completed the assessment as an accommodation to Ms. Tenorio is not a proper basis for discounting a medical opinion. See Langley, 373 F.3d at 1121 (rejecting as speculative the ALJ's conclusion that a medical report was simply an act of courtesy to a patient); see also 20 C.F.R. §§ 404.1527(c) and 416.927(c) (setting forth appropriate factors for evaluating opinion evidence for claims filed before March 27, 2017). Further, case law addressing medical source opinions expressed on checkbox-style forms underscores that the critical question is whether the checkbox findings, either on the form itself or elsewhere in the record, are supported by substantial evidence. See Anderson, 319 F. App'x at 723-24 (finding that although the checklist forms completed by the treating physicians recorded limited clinical comments, there were other materials that supported the conclusions in the forms, including cardiovascular medical reports, echocardiograms, and examination notes); Carpenter v. Astrue, 537 F.3d 1264, 1267 (10
The ALJ's explanations for discounting CNP Lujan-Pino's December 2, 2012, assessment are legitimate and supported by substantial evidence. Here, the ALJ explained that CNP Lujan-Pino's assessment contained no explanations for her conclusions and it was not consistent with the record as a whole. (Tr. 44.) These are proper bases for discounting medical opinion evidence. See 20 C.F.R. §§ 404.1527(c)(3) and (4), 416.927(c)(3) and (4) (explaining that the more a medical source presents relevant evidence to support a medical opinion, and the more consistent a medical opinion is with the record as a whole, the more weight will be accorded to that opinion.) Further, the ALJ's explanations are supported by substantial evidence. Ms. Tenorio concedes that CNP Lujan-Pino provided no explanations for her assessed limitations in December 2012, but argues that the November 2015 assessment contained "ample explanation for her findings." (Doc. 22 at 17.) As previously discussed, however, the November 2015 assessment does not relate to the period the ALJ adjudicated. See Section III.A.1, supra. Thus, this argument necessarily fails. Additionally, although CNP Lujan-Pino represented she had seen Ms. Tenorio four times from 2008 to 2012 (Tr. 385), the record contains only one record prior to the date she completed the December 4, 2012, medical source statement, at which time Ms. Tenorio denied any symptoms associated with her alleged mental impairments.
For the foregoing reasons, the ALJ provided legitimate reasons that are supported by substantial evidence for the weight he accorded CNP Lujan-Pino's December 4, 2012, assessment.
Ms. Tenorio argues that, having accorded great weight to nonexamining State agency psychological consultants Dr. Gucker's and Dr. Robinowitz's assessments, the ALJ failed to account for all of their assessed limitations as he was required to do. (Doc. 22 at 18-19.) In particular, Ms. Tenorio argues that the ALJ failed to account for part of Dr. Gucker's narrative conclusion that Ms. Tenorio could understand, remember, and carry out simple instructions, and two of Dr. Gucker's and Dr. Robinowitz's worksheet moderate limitations; i.e., that she was moderately impaired in her ability to accept instructions from and respond appropriately to criticism from supervisors and 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. (Doc. 22 at 18-19.) The Commissioner contends that the ALJ's RFC fully accounted for the nonexamining State agency psychological consultant's narrative conclusions as he was required to do. (Doc. 24 at 14-15.)
On August 5, 2018, nonexamining State agency psychological consultant Donald K. Gucker, Ph.D., reviewed and discussed the medical evidence record and Ms. Tenorio's Adult Function Report and, although assessing certain moderate limitations,
(Tr. 41.)
In an unpublished, but persuasive opinion, the Tenth Circuit specifically addressed the ALJ's responsibility in evaluating a State agency psychological consultant's MRFCA in light of the instructions printed on the forms and certain sections of the POMS that describe the separate functions of Sections I and III. Tenth Circuit case law instructs that an ALJ may not "turn a blind eye to moderate Section I limitations" and that
Carver v. Colvin, 600 F. App'x 616, 619 (10
Dr. Gucker's narrative conclusion adequately encapsulated the moderate limitations he assessed and clearly related in terms of work-related functions Ms. Tenorio's ability to do work-related mental activities. Here, the narrative portion of Dr. Gucker's MRFCA is detailed and he explains his review of the record evidence and the bases of his conclusion.
For the foregoing reasons, the Court finds that the ALJ's RFC properly accounted for the limitations assessed by the nonexamining State agency psychological consultants. As such, there is no reversible error as to this issue.
Ms. Tenorio argues that the ALJ relied on improper factors in evaluating her allegations of disabling anxiety. (Doc. 22 at 19-21.) Specifically, Ms. Tenorio argues that the ALJ improperly relied on Ms. Tenorio's lack of mental health care and her daily activities to find her not credible, and improperly discounted Ms. Tenorio's boyfriend's statements. (Id.) The Commissioner contends that the ALJ considered the regulatory factors supported by record evidence to find Ms. Tenorio's statements regarding her limitations were not consistent with the record. (Doc. 24 at 16-18.)
"Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by substantial evidence." Wilson v. Astrue, 602 F.3d 1136, 1144 (10
Here, the ALJ's credibility findings are closely and affirmatively linked to substantial evidence. The ALJ found that despite Ms. Tenorio's allegedly disabling impairments, Ms. Tenorio engaged in activities of daily living including preparing meals, performing household chores, shopping, socializing with family, and following recipes.
Lastly, the ALJ discussed Ms. Tenorio's boyfriend's Third-Party Adult Function Report, and accorded it little weight. (Tr. 44-45.) The ALJ explained that, like Ms. Tenorio's allegations, his statements were not supported by the preponderance of the medical source evidence. (Tr. 44-45.) The ALJ also noted that he had no medical expertise as a basis to observe signs and symptoms related to the intensity of Ms. Tenorio's alleged impairments. (Id.) These are proper bases for discounting his report and they are supported by substantial evidence. SSR 06-03p, 2006 WL 2329939, at *4-5.
For the foregoing reasons, the Court finds the ALJ's findings concerning the intensity, persistence, and limiting effects of Ms. Tenorio's symptoms are closely and affirmatively linked to substantial evidence. As such, there is no reversible error as to this issue.
For all of the foregoing reasons, the Court finds that the ALJ applied the correct legal standards in determining Ms. Tenorio's RFC and that it is supported by substantial evidence.
Ms. Tenorio argues that the ALJ erred at step four because (1) the ALJ's RFC was not supported by substantial evidence; (2) the ALJ failed to make specific findings regarding her past relevant work; and (3) the ALJ's findings whether Ms. Tenorio could meet the job demands despite the mental or physical limitations he found were tentative. (Doc. 22 at 21-23.) The Commissioner contends that the (1) ALJ's RFC was supported by substantial evidence; (2) the ALJ classified Ms. Tenorio's past work using both VE testimony and the DOT; and (3) any error in the ALJ's uncertainty that Ms. Tenorio could perform her past work is harmless error in light of the ALJ's alternative findings at step five. (Doc. 24 at 18-20.)
To determine whether a claimant can perform her past relevant work 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 [his physical and mental] limitations." 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1). Second, the ALJ determines the physical and mental demands of claimant's past work. Winfrey, 92 F.3d at 1024. Third, the ALJ determines whether, given claimant's RFC, the claimant is capable of meeting those demands. Id. at 1024-25.
The ALJ did not rely on Ms. Tenorio's ability to do her past relevant work to determine she was disabled. At step four, the ALJ explained that having compared the RFC with the physical and mental demands of Ms. Tenorio's past work as a garment sorter, she may be able to perform it as actually and generally performed. (Tr. 45.) The ALJ also noted the VE's testimony that Ms. Tenorio's past relevant work as a garment sorter did not require the performance of any of the exertional or nonexertional abilities precluded by the RFC. (Id.) The ALJ concluded, however, that
(Tr. 45.) Given this explanation, and the Court's conclusion that substantial evidence supports the ALJ's step five findings, even assuming the existence of errors Ms. Tenorio alleges at step four, those errors are harmless. See Martinez v. Astrue, 316 F. App'x 819, 824 (10
Thus, the Court finds that Ms. Tenorio's step four arguments cannot support a finding of reversible error.
With respect to the ALJ's step five findings, Ms. Tenorio argues that the ALJ's hypothetical to the VE was tainted because the ALJ's RFC was not supported by substantial evidence and failed to include all of the limitations that were supported by substantial evidence. (Doc. 22 at 23.) Ms. Tenorio also argues that the jobs the ALJ identified have a reasoning level of two and are inconsistent with her ability to understand, remember and carry out simple instructions. (Id. at 23-24.) The Commissioner contends that the ALJ's RFC is supported by substantial evidence, is consistent with unskilled work, and that the Tenth Circuit "has never held that a limitation to simple work conflicts with reasoning level two as defined in the DOT." (Doc. 24 at 20-21.)
When the disability analysis reaches step five of the sequential process, the burden shifts to the Commissioner to show that "there are sufficient jobs in the national economy for a hypothetical person with [the claimant's] impairments," Jensen v. Barnhart, 436 F.3d 1163, 1168 (10
The ALJ's step five findings are supported by substantial evidence. The Court has already found that the ALJ's RFC is supported by substantial evidence. See Section III.A., supra. Thus, this argument is rejected. As to Ms. Tenorio's second argument, Ms. Tenorio cites to Paulek v. Colvin, 662 F. App'x 588 (10
For the reasons stated herein, Ms. Tenorio's Motion to Reverse and Remand for Rehearing, With Supporting Memorandum filed September 11, 2017 (Doc. 22.) is
On August 5, 2018, nonexamining State agency psychological consultant Donald K. Gucker, Ph.D., reviewed the medical evidence record and, although assessing certain moderate limitations, concluded that Ms. Tenorio could "understand, remember, and carry out simple instructions, make simple decisions, attend and concentrate for two hours at a time, interact adequately with co-workers and supervisors, and respond appropriately to changes in routine work settings." (Tr. 90, 103.) On December 17, 2013, at reconsideration, nonexamining State agency psychological consultant Ralph Robinowitz, Ph.D., affirmed Dr. Gucker's assessment. (Tr. 115, 130.)
