Vasquez v. Comm'r, Soc. Sec. Admin.

MICHELLE L. VASQUEZ, Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

Civil Action No. 18-cv-01970-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

July 19, 2019

MEMORANDUM OPINION AND ORDER

Magistrate Judge Nina Y. Wang

This civil action arises under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33 for review of the Commissioner of Social Security Administration's ("Commissioner" or "Defendant") final decision denying Plaintiff Michelle L. Vasquez's ("Plaintiff" or "Ms. Vasquez") application for Disability Insurance Benefits ("DIB") and Supplemental Social Security Income Benefits ("SSI"). Pursuant to the Parties' consent [#13], this civil action was referred to this Magistrate Judge for a decision on the merits. See [#18]; 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; D.C.COLO.LCivR 72.2. Upon review of the Parties' briefing, the entire case file, the Administrative Record, and the applicable case law, this court REVERSES the Commissioner's decision and REMANDS for further proceedings.

BACKGROUND

This is the second time Plaintiff Michelle Vasquez comes before the court seeking review of an ALJ's decision denying her benefits. Ms. Vasquez first filed for DIB and SSI benefits on June 30, 2011, with an alleged disability onset date of April 30, 2011. [#11-12 at 583].¹ The ALJ denied her request and she appealed to this court which reversed and remanded for further proceedings. Vasquez v. Colvin, No. 14-CV-01198-MEH, 2015 WL 1186737 (D. Colo. Mar. 11, 2015). On remand, this matter then went before the present ALJ who held a hearing on November 3, 2016 (where Ms. Vasquez amended her alleged date of onset to May 31, 2011) and issued a denial on January 13, 2017. [#11-12 at 580, 607]. The Appeals Council then denied review on June 27, 2018. [Id. at 571]. On August 3, 2018, Plaintiff commenced the present matter, once again asking a court in this District to review the denial of benefits.

The record before the ALJ reflects information regarding Plaintiff's severe physical and mental limitations for diabetes, neuropathy, kidney dysfunction, degenerative joint disease, anxiety, and depression. [#11-12 at 586]. Specifically, as relevant for present purposes, the ALJ had before her evidence regarding: (1) Plaintiff's self-reported daily activities and limitations; (2) the opinion of treating physician Dr. David Neece; (3) the opinion of treating physician-podiatrist Dr. Gordon Rheume; (4) the opinion of the Commissioner's consultative examining physician, Dr. Adam Summerlin; (5) the State agency non-examining physician, Dr. Alan Ketelhohn, M.D.; (7) the state agency non-examining psychologist, MaryAnn Wharry. On appeal, Ms. Vasquez identifies the following flaws with the ALJ's analysis:

(1) The ALJ gave weight to Dr. Neece's opinion of mental limitations but failed to account for them in the RFC finding.

(2) The ALJ denied controlling weight to Dr. Neece's opinion of physical restrictions but failed to determine whether it was still entitled to some other quantum of weight.

(3) The ALJ did not have valid reasons for rejecting Dr. Rheume's opinion of physical restrictions.

[#15 at 4]. As relief, Plaintiff requests an immediate award rather than a remand for another hearing. [Id.]. Because Ms. Vasquez's overall records give important context to the issues on appeal, this court discusses them briefly.

Dr. David Neece provided opinions as to Plaintiff's physical and mental disability. Dr. Neece filed two Med-9 Forms, finding that Plaintiff was disabled although the handwritten record is largely illegible. [#11-10 at 489-91]. Dr. Neece, in a letter to Plaintiff's counsel, stated that Plaintiff needed to elevate her feet above the heart 2-3 times a day for 15-30 minutes and needed to lie down for 15 minutes every two hours. [#11-11 at 539-40]. When asked if Plaintiff was capable of doing full-time work, Dr. Neece stated that it "depends on the type of work" but later on that same page states that Ms. Vasquez was "unable to work" in response to a query whether she was "prevented [from doing] full time work." [Id. at 540]. In a record dated March 11, 2013, Dr. Neece further opined that Ms. Vasquez was "completely disabled from being able to resume previous work requirements." [Id. at 569-70].

Dr. Neece also completed a Residual Functional Capacity ("RFC") evaluation. [Id. at 498]. In it, Dr. Neece found that Plaintiff had a "marked" inability to "complete a normal workday" due to her depression and anxiety and that she would be off-task for 30% of the workweek given the same. [Id. at 499, 500]. As to her physical limitations, Dr. Neece reported that she could sit for thirty minutes at a time and ten hours out of an eight-hour workday.² [Id. at 501]. Ms. Vasquez could be on her feet for an hour at a time for a total of eight hours in an eight-hour day. [Id.]. Despite this, Dr. Neece opined that Ms. Vasquez needed to elevate her feet for 15 minutes every2-3 hours—this time merely level as opposed to above her heart—and needed to lie down for fifteen minutes every two hours. [Id. at 502, 503].

Dr. Gordon Rheume, a podiatrist, provided a brief opinion on Plaintiff's physical disability. [Id. at 568]. Dr. Rheume stated that Ms. Vasquez could only stand for thirty minutes at a time and could only stand for one or two hours total a day in these thirty-minute intervals. [Id.]. Dr. Rheume based this opinion on Plaintiff's complaints; while he references her diagnosis of neuropathy, the opinion is otherwise only supported by Plaintiff's own recounting of her ailment. [Id.].

Drs. Summerlin and Ketelhohn also provided opinions. Dr. Summerlin provided a consultative examination in which he stated that Plaintiff could stand and sit for up to six hours, lift twenty-five pounds frequently and fifty pounds frequently, and should be limited to occasionally working around unprotected heights. [Id. at 527]. Dr. Ketelhohn, a non-examining physician, opined that Plaintiff was limited to light work. [#11-3 at 62].

For her own part, Plaintiff states that she takes part in a wide range of daily activity. She conducts self-care and basic hygiene, but requires a chair in the shower and wears a limited array of easy-to-put on clothes. [#11-6 at 201]. She cooks her own meals, but her impairments limit her to cooking in brief intervals, with help, and usually only frozen meals or soup which takes about ten minutes. [Id. at 202]. She cleans and does household work, but doing the dishes takes her an hour because she cannot stand for long enough to complete the task in one session. [Id.]. She goes out to shop at 7-11 once a month, but cannot drive herself and spends only thirty or so minutes shopping. [Id. at 203]. She reports that "all she do[es] is cry" which impedes her familial and social relations. [Id. at 205]. She has a son who was severely disabled in a car accident, and she has been helping him do paperwork for his divorce. [#11-11 at 541].

Faced with these often-conflicting opinions, the ALJ determined that Plaintiff was not disabled, rejecting Dr. Neece's opinion and assigning little weight to Dr. Rheume's. The Appeals Council denied review, and Plaintiff now seeks this court's review. [#11-12 at 571].

APPLICABLE LAW

I. Standard Of Review

In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); cf. Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993) ("[I]f the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." (internal citation omitted)). The court may not reverse an ALJ simply because she may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). But "[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court may not "reweigh the evidence or retry the case," but must "meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Flaherty, 515 F.3d at 1070 (internal citation omitted).

II. Five-Step Analysis

An individual is eligible for DIB benefits under the Act if she is insured, has not attained retirement age, has filed an application for DIB, and is under a disability as defined in the Act. 42 U.S.C. § 423(a)(1). An individual is determined to be under a disability only if her "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kindof substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d)(2)(A). The disabling impairment must last, or be expected to last, for at least twelve consecutive months. See Barnhart v. Walton, 535 U.S. 212, 214-15 (2002). Additionally, the claimant must prove she was disabled prior to her date last insured. Flaherty, 515 F.3d at 1069.

The Commissioner has developed a five-step evaluation process for determining whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(4)(v); see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps in detail). "If a determination can be made at any of...