Willie v. Colvin

• Decision Date: 09 November 2016
• Docket Number: CIV 15-0859 KBM
• Parties: CHARLEY J. WILLIE, JR, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of New Mexico

CHARLEY J. WILLIE, JR, Plaintiff, v. CAROLYN W. COLVIN,Acting Commissioner of Social Security, Defendant.

CIV 15-0859 KBM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

November 9, 2016

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on Plaintiff's Motion to Reverse and Remand to Agency for Rehearing, with Supporting Memorandum (Doc. 20), filed April 11, 2016. Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 12. Having reviewed the parties' submissions, the relevant law, and the relevant portions of the Administrative Record, the Court will grant the Motion.

I. Procedural History

Plaintiff filed applications with the Social Security Administration for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act on July 7, 2011. AR at 163-173.¹ Plaintiff alleged a disability onset date of April 5, 2011, due to "back issues." AR at 97, 104 163, 172. Plaintiff developed these "issues" after falling backward off of a six-foot wall. AR at 63. Prior to his fall Plaintiff worked as a picketer for a labor union, a truck washer, a forklift driver, a cook ata fast food restaurant, a dishwasher, and a car washer. AR at 81-82. The agency denied Plaintiff's claims initially and upon reconsideration, and Plaintiff requested a hearing. AR at 93-128.

After a de novo hearing, Administrative Law Judge Michelle K. Lindsay ("the ALJ") issued an unfavorable decision on March 28, 2014. AR at 39-47. Plaintiff submitted a Request for Review of the ALJ's Decision to the Appeals Council, which the Council declined on May 20, 2014. AR at 1-6, 33-35. As such, the ALJ's decision became the final decision of the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). This Court has jurisdiction to review the decision pursuant to 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).

A claimant seeking disability benefits must establish that he 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); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20 C.F.R. § 416.905(a). The Commissioner must use a sequential evaluation process to determine eligibility for benefits. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. § 416.920(a)(4); see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

At Step One of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the relevant time period. AR at 41. At Step Two, she determined that Plaintiff had the severe impairments of "history of T10-T11 diskitis with osteomyelitis; status post T10-T11 corpectomy and T9-T11 fusion with laminectomy; degenerative disc disease of the lumbar spine; and obesity. . . ." AR at 41.At Step Three, the ALJ concluded that Plaintiff's impairments, individually and in combination, did not meet or medically equal the regulatory "listings." AR at 42.

When a plaintiff does not meet a listed impairment, the ALJ must determine his residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); 20 C.F.R. § 416.920(a)(4). RFC is a multidimensional description of the work-related abilities a plaintiff retains in spite of her medical impairments. 20 C.F.R. § 404.1545(a)(1); 20 C.F.R. § 416.945(a)(1). The ALJ in this case determined that Plaintiff retained the RFC to "perform a wide range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b)." AR at 42.

Specifically, the claimant can lift and carry twenty pounds occasionally and ten pounds frequently. The claimant can stand and/or walk for six hours out of an eight-hour workday with regular breaks. The claimant can sit for six hours out of an eight-hour workday with regular breaks. The claimant can push and/or pull twenty pounds occasionally and ten pounds frequently. The claimant cannot climb ladders, ropes, or scaffolds.

AR at 42. Employing this RFC at Steps Four and Five, the ALJ determined that Plaintiff was unable to perform his past relevant work. AR at 45-46. However, the ALJ found that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. AR at 46. Specifically, the ALJ determined that Plaintiff maintains the RFC to perform a full range of light work, resulting in a finding of "not disabled" pursuant to Medical-Vocational Rule 202.21. AR at 46 (citing SSR 83-14). Accordingly, the ALJ determined that Plaintiff was not disabled from his alleged onset date through the date of her decision, and denied benefits. AR at 47.

II. Legal Standard

This Court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).

III. Analysis

Plaintiff argues that the ALJ erred by failing to develop the record as to his nonexertional impairments and failed to properly evaluate his obesity at Steps Three and Four of the sequential evaluation process. Because the Court concludes that remand is warranted on the first ground, it will not address Plaintiff's complaints as to the treatment of his obesity "because they may be affected by the ALJ's treatment of this case on remand." Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

Plaintiff argues that the ALJ failed to develop the record as to his non-exertional impairments by neglecting to order a consultative examination with a mental status examination and WAIS testing. Doc. 20 at 8. Plaintiff argues that the ALJ should have ordered a consultative examination in his case because the medical evidence in the record was inconclusive as to any cognitive impairment he may have and as to his depression. Id. at 10. After carefully reviewing the record in this case, the Court agrees.

While "[i]t is beyond dispute that the burden to prove disability in a social security case is on the claimant[,] . . . [n]evertheless, because a social security disability hearing is a nonadversarial proceeding, the ALJ is 'responsible in every case to ensure that an adequate record is developed during the disability hearing consistent with the issues raised.'" Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quoting Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.1997)). This duty is "heightened" when aclaimant, like Plaintiff, appears before the ALJ without counsel. Madrid, 447 F.3d at 790 (citing Henrie v. United States Dep't of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.1993); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992); Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.1987)); see also Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991) ("this duty of inquiry 'takes on special urgency when the claimant [like claimant here] has little education and is unrepresented by counsel.'") (quoted authority omitted).

Still, "the Secretary has broad latitude in ordering consultative examinations." Hawkins, 113 F.3d at 1166 (citing Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 778 (10th Cir.1990)). The regulations permit an ALJ to order a consultative examination if the medical sources do not provide sufficient evidence about an impairment for the agency to determine whether a claimant is disabled. 20 C.F.R. § 404.1517; 20 C.F.R. § 416.917. Before purchasing a consultative examination, the agency considers existing medical reports, the disability interview form, and any other pertinent information in the record. 20 C.F.R. § 404.1519a(a); 20 C.F.R. § 416.919a(a). After considering this evidence, the agency "may purchase a consultative examination to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to support a determination or decision on your claim." 20 C.F.R. § 404.1519a(b); 20 C.F.R. § 416.919a(b).

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:

(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 forreasons 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); 20 C.F.R. § 416.919a(b); see also Hawkins, 113 F.3d at 1166 ("where there is a direct conflict in the medical evidence requiring resolution, . . . or where the medical evidence in the record is inconclusive, . . . a consultative examination is often required for proper resolution of a disability claim. Similarly, where additional tests are required to explain a diagnosis already contained in the record, resort to a consultative examination may be necessary.") (citations omitted).

"When a claimant contends that the ALJ erred in failing to obtain a consultative examination, [the Court is] presented with the difficult issue of 'deciding what quantum of evidence a claimant must establish of a disabling impairment or combination of impairments before the ALJ will be required to look further.'" Barrett v. Astrue, 340 F. App'x 481, 486 (10th Cir. 2009) (quoting Hawkins, ...